(a) See Smith v. Smith, 32 L. J. (C. P.) 149.
This reluctance is also very strongly exemplified by some cases turning on contracts in restraint of trade. By the law of England, a contract in general restraint of trade is void; but if in partial restraint of trade only, it may be supported, provided the restraint be reasonable, and the contract founded on a consideration. And it was once laid down that the consideration must be adequate, and that the Courts would enter into the question of adequacy. However, they have now decided that they ought not to do so. These cases are particularly strong, for they are cases in which, contrary to the general rule of law, a consideration is required, even though the contract be by deed. I shall have occasion to mention them again in a subsequent lecture. At present, I will merely refer to the decisions (b).
(b) Hitchcock v. Coker, 6 A. & E. (33 E. C. L. E.) 438; confirmed by Proctor v. Sargent, 2 M. & Gr. (40 E. C. L. R.) 20; and Green v. Price, 13 M. & \V.
1 So in the old case in which the horse was sold for one barley-corn for the first nail in the horse's shoe, two for the second, and so on, doubling on each nail, the jury found, under the direction of the Court, for 8/., the value of the horse: James v. Morgan, 1 Lev. 111.-r.
The consideration must, nevertheless, be of some value in contemplation of the law; for instance, if a man make an estate at will in favour of another, this is an insufficient consideration, for he may immediately determine his will (c). So, too, where a son had given to his father a promissory note, *and, to an action brought by his father's executor against him upon it, he pleaded that he had just ground to complain of the distribution which the father had made of his property, as the father had admitted; and that it was thereupon agreed between them that the son should cease for ever to make any such complaint; and that the father would discharge him from liability on the note, and the cause of action in respect thereof; and that such agreement should be accepted in satisfaction of the note: the Court of Exchequer clearly held, that there was no consideration for the agreement of the father. The son had no right to complain, for the father might make what distribution of his property he liked; and the son's abstaining from doing what he had no right to do could be no consideration (d).1
695; 16 M. & W. 346, S. C, in error; Archer v. Marsh, 6 A. & E. (33 E. C. L. E.) 959; and Leighton v. Wales, 3 M. & W.545.
(c) 1 Roll. Abr. 23, pi. 29.
(d) White r. Bluett, 23 L. J. (Ex.) 36.
1 In Sykes v. Dixon, 9 A.& E. (36 E. C. L. R.) 693, Lord Denman said: "To prove that Bradley was servant, a contract was put in, the operation of which was entirely on one side. It bound Bradley to serve the plaintiff, and no other person, for a specified time, and not to leave the service without giving twelve months' notice. . . . We think that the agreement put in was no contract of service; for it was altogether on one side. Bradley was to serve one person only; but that one was not bound to employ him. It was contended, for the plaintiff, that a promise must be implied, on the master's part, to pay Bradley for his labour; but that would be the same in any service to which Bradley might engage himself; it is no consideration for this contract." See also Rosher v. Williams, L. R. 20 Eq. 210; Maull v. Vaughn, 45 Ala. 134; Pfeiffer v. Adler, 37 N. Y 164 194
I think that I have now sufficiently explained what it is that the law recognizes as a consideration sufficient to support a promise without deed. I must not, however, conclude without noticing one class of cases which form a species of exception to the rule that a simple contract requires a consideration to support it. I allude to the case of a negotiable security, as a bill of exchange, or promissory note. These, not being under seal, are simple contracts; but there is this marked distinction between the situation in which they stand *and that in which any other simple contract stands, namely, that they are always presumed to have been given for a good and sufficient consideration, until the contrary is shown. And even if the contrary be shown, still, if the holder for the time being have given value for the instrument, his right to sue on it cannot be taken away by showing that the person to whom it was originally given could not have sued, unless, indeed, it be further shown that he (the holder) had notice of the circumstances, or that he took the security when overdue, which is a sort of constructive notice, and places him in the same situation as the party from whom he took it. But so long as nothing of that sort appears, every note and acceptance is prima facie taken to have been given for good consideration, and every indorsement to have been made on good consideration (e).
(e) See the Act codifying the law relating to Bills and Notes, 45 & 46 Vict. c. 61. (Bills of Exchange Act, 1882) ss. 27-30. See also the cases collected, Byles on Bills, last ed.; Bayley on Bills, by Dowdeswell; and Smith's Mercantile Law, last ed., by Dowdeswell.