At common law, a gratuitous promise, or promise for which the promisor obtains no consideration, is binding if made under seal,51 but is absolutely void in the absence of a seal. This characteristic of contracts under seal is often accounted for on the ground that their solemnity imports a consideration, but the supposition is historically untrue. At common law, even if it were allowable to show that there is no consideration for a deed, and if the obligee or grantee were to admit that there was no consideration, it could not affect the validity of the deed. It derives its validity solely from its form. The doctrine of consideration is of a much later date than that at which a contract under seal was in full efficacy, an efficacy which it owed entirely to its form.52
Even at common law a contract in partial restraint of trade, though made under the formality of a seal, must be supported by a consideration.53
And as a general rule, if there be a consideration for a deed, it is open to the party sued On the contract to show that the consideration was illegal or immoral, in which case the deed is void.54
The idea of consideration as a necessary element of contract has always met with peculiar favor in courts of chancery. Equity will not grant its peculiar remedy of specific performance, nor exercise its peculiar power to correct mistakes and reform contracts, where the promises are without consideration, even though they are under seal.55 So, also, in the exercise of its peculiar power of declaring a contract void and setting it aside on the ground of fraud and undue influence, it will look into the question of consideration, and absence of consideration will be regarded as corroborative evidence of fraud and undue influence.56
51 2 Bl. Comm. 446; Cooch v. Goodman, 2 Q. B. 580; Fallowes v. Taylor, 7 Term R. 475; McMillan v. Ames, 33 Minn. 257, 22 N. W. 612; Dorr v. Mun-sell, 13 Johns. (N. Y.) 430; Van Valkenburgh v. Smith, 60 Me. 97; Harris v. Harris' Ex'r, 23 Grat. (Va.) 737; Wing v. Peck, 54 Vt. 245; Page v. Trufant, 2 Mass. 159, 3 Am. Dec. 41; State v. Gott, 44 Md. 341; Edelin v. Sanders, 8 Md. 118; Day v. Davis, 64 Miss. 253, 8 South. 203. See "Contracts," Dec. Dig. (Key-No.) §§ 47, 48; Cent. Dig. §§ 220, 221, 256-258, 406.
52 Anson, Cont. (4th Ed.) 49.
53 Mallan v. May, 11 Mees. & W. 665; Palmer v. Stebbins, 3 Pick. (Mass.) 188, 15 Am. Dec. 204; Wiley v. Baumgardner, 97 Ind. 68, 49 Am. Rep. 427; Keeler v. Taylor, 53 Pa. 467, 91 Am. Dec. 221. Of course this does not apply to contracts that are to such an extent in restraint of trade as to be contrary to public policy. Such contracts are void, as being illegal, without regard to the question of consideration. Alger v. Thacher, 19 Pick. (Mass.) 51, 31 Am. Dec. 119. See post, p. 384. See "Contracts," Dec. Dig. (Key-No.) §§ 47, 48, 116; Cent. Dig. §§ 220, 221, 406, 542.
54 Collins v. Blantern, 1 Smith, Lead. Cas. 369; Logan v. Plummer, 70 N. C. 388. And see Paxton v. Popham, 9 East, 421 See "Contracts," Dec. Dig. (Key-No.) % 136; Cent. Dig. §§ 681-700.