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a new debt to him. But it does not follow that, though a promise revives the debt in such cases, any of those debts will be a sufficient consideration to support a promise to do a collateral thing, as to supply goods, or perform work and labour; and so indeed it was held in this court in the case of Reeves v. Hearne, 1 M. & W. 323. In such case it is but an accord unexecuted, and no action will lie for not executing it. We think, therefore, that the conditional promise to pay the debt would be good in this case, and supported by the original consideration; and a conditional promise, which, when absolute, will be only a renewal of the original liability, and to the same extent, is equally good and supported by the original consideration." Earle v. Oliver, 2 W. H. & G. 90; Wolridge v. Harrow, 18 Vermont 448.
Still an express promise cannot be supported by a consideration from which the law could not imply a promise except where the express promise does away with a legal suspension or bar of a right of action which but for such suspension or bar would be valid. This result was adhered to in Beaumont v. Reeve, 8 Adol. & El. N. S. 487, 55 Eng. Com. Law Rep. 487. It may deserve consideration, how this rule shall be applied when a sheriff from whom a debtor escapes pays the debt, and the debtor afterwards promises him to pay it. In New York the consideration has been adjudged sufficient and an action maintained on the promise. Doty v. Wilson, 14 Johns. 381. What the defendant did was considered an adoption of the payment-an adoption of it as made for his benefit the court treated the subseqent ratification as equivalent to an original command; it was an act equivalent to a previous request or from which a previous request might be implied. Oatfield v. Waring, 14 Johns. 188; 13 Barbour
508. But under other circumstances the court has acted upon the conclusion in the note to Wennall v. Adney. The langnage of that note was adopted in Smith v. Ware, 13 Johns. 257, and this case was approved in Ehle v. Jadson, 24 Wend. 97, and Chilcott v. Trimble &c. 13 Barbour 508.
8. Whether past cohabitation is a sufficient consideration for a promise. Action may be maintained on promise to pay for support of child, if not for board of mother.
In a former page (32), cases of deeds have been referred to in which the question was whether the consideration was so illegal as to make the deed (which required no consideration) void. A very different question arises when the action is on a promise. In England past cohabitation alone or the ceasing
to cohabit in future, is not a sufficient consideration to sustain a promise. Binnington v. Wallis, 4 Barn. & Ald. 650, 6 Eng. Com. Law Rep. 554. In such case the mere moral consideration is nothing, Parke, B. in Jennings v. Brown, 9 M. & W. 500; not even though the defendant is the seducer of the plaintiff; for in England as the seduction can give the plaintiff no direct right of action, so it creates no liability of any kind from which a consideration can arise. Beaumont v. Reeve, 8 Adol. & El. N. S. 487, 55 Eng. Com. Law Rep. 487.
In a future chapter there will be occasion to remark on ch. 148, 1, (p. 589) of the Code of Virginia, which provides that "an action for seduction may be maintained without any allegation or proof of the loss of the service of the female by reason of the defendant's wrongful act." It may be that in this state, as in Pennsylvania, it will be considered the duty of a man who has humbled a woman to provide for her; and that when after past cohabitation he has made a promise to give her a bond, an action will be maintained on such a promise. Shenk v. Mingle, 13 S. & R. 32.
In New York there was the following case. The plaintiff's daughter became the mother of an illegitimate child. The defendant was the reputed father and promised to pay the plaintiff for their board. About two months after, another child was born, of which the defendant was also the father. Shortly afterwards he made a similar promise. It was adjudged that for this promise there was a lawful and sufficient consideration, notwithstanding the plaintiff knew that the defendant, before the birth of the first, and until after the birth of the second child, frequently visited her daughter at the plaintiff's house, and during all that time frequently cohabited with the daughter; it did not appear that the defendant ever cohabited with her after the second promise was made. Trovinger v. McBinney, 5 Cow. 254.
Even in England, it may be a matter of bargain that the woman is to take care of the child. As the father might have the child affiliated on him, the woman's supporting the child is a sufficient consideration to sustain a promise by the father to pay her therefor. Jennings & wife v. Brown &c. 9 M. & W. 495.
The promise may be to pay the mother a yearly sum if she shall properly bring up the child. Hicks v. Gregory, 8 Man. Gr. & Scott 385, 6, 65 Eng. Com. Law Rep. 385, 6. In this case the promise was in a letter. "Suppose," says Wilde, C. J., "the letter had been addressed to a stranger who had no interest in the child, and upon whom there rested no duty or ob
ligation to bring it up, still, if he had abided by the terms of it and brought up the child in the prescribed manner there would have been ample consideration for the promise to pay the annuity."
9. If consideration be legal, court may decline enquiring into its adequacy. Meaning of the rule that there must be adequate consideration for agreement in restraint of trade.
As between original parties and where the adverse rights of creditors are not in question, the law (except so far as it is otherwise provided by statute) will not enquire into the adequacy or sufficiency of the consideration; that being left to be adjusted by the parties themselves. Shaw, C. J. in Parish v. Stone, 14 Pick. 207.
If the defendant says to the plaintiff, "If you will go to York I will give you £ 100," or "if you will tear up that paper I will give you £ 100," each of these, says Maule, J., constitutes a good consideration. Cooper v. Parker, 14 Com. Bench (5 J. Scott) 121, 78 Eng. Com. Law Rep. 121. If a defendant plead infancy, whether he was or was not an infant at the time the cause of action accrued, his agreeing to withdraw that defence is ample consideration for the plaintiff's agreeing to forego a portion of his demand. S. C. The court wont go into the question whether the one party or the other would or should have succeeded in the original action. The compromise of a doubtful claim is a good consideration without regard to the question of who might have the right side of the controversy. O'Keson v. Barclay, 2 Penrose & Watts 531.
The doctrine as to contracts in restraint of trade has been adverted to, ante, p. 34, 5. In many of the cases, the judges in delivering their opinion, that the agreement in the particular instance before them was a valid agreement, and the restriction reasonable, have used the expression, that such agreement appeared to have been made on an adequate consideration, and seem to have thought that an adequacy of consideration was essential to support a contract in restraint of trade. "If," says Tindal, C. J., " by that expression it is intended only that there must be a good and valuable consideration, such consideration as is essential to support any contract not under seal, we concur in that opinion. If there is no consideration, or a consideration of no value, the contract in restraint of trade, which in itself is never favoured in law, must either be a fraud upon the rights of the party restrained, or a mere vol
untary contract, a nudum pactum, and therefore void. But if by adequacy of consideration more is intended, and that the court must weigh whether the consideration is equal in value to that which the party gives up or loses by the restraint under which he has placed himself, we feel ourselves bound to differ from that doctrine. A duty would thereby be imposed upon the court in every particular case, which it has no means whatever to execute. It is impossible for the court looking at the record to say whether in any particular case the party restrained has made an improvident bargain or not. The receiving instruction in a particular trade might be of much greater value to a man in one condition of life than in another; and the same may be observed as to other considerations. It is enough as it appears to us that there actually is a consideration for the bargain; and that such consideration is a legal consideration and of some value." Hitchcock v. Coker, 6 Adol. & El. 438, 33 Eng. Com. Law Rep. 107, 8; Sainter v. Ferguson, 7 Man. Gr. & Scott 729, 30, 62 Eng. Com. Law Rep. 729, 30.
10. Under what circumstances a game or wager was or was not valid at common law. Changes made by statute. Rule in cases of insurance as to assured having an insurable interest. How far a life insurance is deemed a wager policy.
There is often a wager, where the party has no other interest in the subject matter than that which he chooses to create by his bet. Such a wager is not allowed by the law of Scotland, 2 T. R. 616; 3 Id. 697; and that was said to be according to the civil law. But Lord Kenyon mentions a distinction taken by Vinnius-that wagers respecting Cæsar are allowed unless they affect the character of Cæsar &c. 3 T. R. 705.
However the civil law may have been, many cases shew that at common law wagers are not void qua wagers; not void because of the gaming; Andrews v. Herne, 1 Lev. 33; Walcott v. Tappen, 1 Keb. 56, 65; Jones v. Randall &c. Cowp. 37; Earl of March v. Pigott, 5 Burr. 2802; Good v. Elliott, 3 T. R. 693; Campbell v. Richardson &c. 10 Johns. 406. There are precedents in Herne's Pleader of declarations upon wagers as far back as the time of Elizabeth. 16 East 155. And down to the present time the English decisions hold that at common law wagers are not illegal except such as involve a breach of law or morals or affect the public
policy of the country. Morgan v. Pebrer, 3 Bingh. N. C. 457, 32 Eng. Com. Law Rep. 207.
The practice of entertaining in courts of justice actions. upon wagers seems to have obtained without a full consideration of the subject: objections would have lain in many cases of wagers that have formerly been maintained without noticing such objections. 16 East 161. The first of these reported, is an action on a promise (in consideration of 20s. paid to defendant by plaintiff) to pay plaintiff £20 if Charles Stuart should be made king of England within 12 months; the promise being made when the king was in exile and about 6 months before his restoration. Andrews v. Herne, 1 Lev. 33. English judges, in more modern days have said that such a bet could not be sustained. 3 T. R. 697; 16 East 162.
An action will not be countenanced upon a subject in which not only the parties had no interest other than what they created to themselves by the bet, but the public have an interest to restrain it. In 1802 when Napoleon Bonaparte was first consul of the French Republic and at peace with Great Britain, a bet arose out of a conversation concerning the probability of his assassination or other violent death. An action was brought stating the consideration and promise to be that if the plaintiff would pay the defendant 100 guineas on the 31st May 1802, the defendant would pay him one guinea a day so long as Napoleon Bonaparte should live; and the plaintiff claimed £2296 for the time which had elapsed since the defendant stopped paying the guinea a day. A verdict was found for the defendant; and the court of king's bench refused to set it aside; Lord Ellenborough considering it as a wager against public policy and of immoral tendency. Gilbert v. Sykes, 16 East 150. It had a tendency to encourage his assassination, which even in the instance of a public enemy, should receive no encouragement from the law. 5 M. & W. 81.
There is yet more objection to a wager as to the conviction or acquittal of a person charged with felony; for such a wager has a tendency to influence and pervert the course of criminal justice; a tendency to induce the party to it either to give false testimony, if it be his interest to procure a conviction, or if the other way, to withdraw from the court evidence which he may either possess at the time of laying the wager or which may afterwards come to his knowledge. Even if a party be not in a situation to suppress or fabricate evidence, still he may influence the result of the trial by prejudicing the public mind on the case and thus deprive the party charged of the fair trial to which he is entitled. Evans v. Jones, 5