Contract made by as agent for another, knowing that he has no such authority, agent with- he also becomes liable to an action for the damages conse out autho rity. quent upon his false and fraudulent representation (a). The defendant accepted a bill "by procuration of" the drawee, knowing that he had no authority to do so, and the drawee repudiated the acceptance; it was held that the indorsee, who had sued the drawee and been nonsuited, though he could not charge the defendant as acceptor, might maintain an action against him for falsely representing that he had authority to accept by procuration (b). (a) Polhill v. Walter, 3 B. & Ad. (b) Polhill v. Walter, 3 B. & Ad. 114; ante, p. 187. IN contracts which are founded upon agreement the matter The matter of the contract is comprised in the terms of the agreement. tracts. The matter of the agreement may be varied according to the object to be effected; and contracts may be specifically distinguished, according to the matters and purposes to which they are applied;-as, contracts of sale, of land, or of goods; contracts between landlord and tenant; contracts of bailment; of carriers; contracts of insurance; of guarantee; bills of exchange and promissory notes; and others. The general rules and principles of the law of contract receive a particular application in each distinct species of contract; and the investigation in detail of that application constitutes the law of that species of contract. Such de The consideration.When necessary. tailed investigation is the proper subject of separate treatises, and is not within the limits of an elementary treatise, which is concerned only with the general rules and principles of the law of contract, and their general application. The matter of a contract, however, is subject to various modifications and considerations of a general character, attended with general results and consequences, and independent of the specific application or purpose of the contract; and these general characteristics of the matter of a contract require here to be noticed. The matter of an agreement creating a contract, it has been shown, consists in a promise, and, if the promise is given for a consideration, in the consideration for the promise (a). The consideration and the promise, as forming the matter of the contract, may be conveniently treated of separately. The consideration is the equivalent or return for which the promise is given; and in the English law it is a necessary element in an agreement, besides the promise, in order to create a contract by mere agreement. The object of this requirement is to avoid the risk of giving a binding effect to promises made inadvertently, and without an obligatory inSimple con- tention; and with this object the law provides that all promises not made by way of bargain, in return for a valid consideration, are void of effect as simple contracts (b). tracts. Contracts under seal. Contracts made in the form of a deed under seal, or created by record do not require a consideration. The formality of the contract alone gives sufficient security of a deliberate intention and renders the promise legally binding. Hence, gratuitous promises, which are not given, by way of bargain, for a consideration, though they cannot be made binding in the form of a simple contract, may be rendered obligatory by using the form of a contract under seal. A deed may also be used to give effect to an agreement containing a valid consideration; and in such case, if the deed does not state the consideration, or does not state it completely, the parties may prove the consideration, if required, by extrinsic evidence, provided it is not inconsistent with the deed (c). (a) See ante, pp. 9, 10. (c) Ante, p. 84; Leifchild's case, L. R. 1 Eq. 321. notes. An apparent exception to the rule that a consideration is Bills of exessential in simple contracts arising from agreement occurs and prochange in bills of exchange and promissory notes. Bills of exchange missory by the custom of merchants are valid without the consideration appearing in express terms on the face of the instrument (a); and promissory notes are placed on the same footing with bills of exchange, in this respect, by the statute 3 & 4 Anne, c. 9; so that the payee or indorsee of a promissory note may maintain an action upon it, in the same manner as upon a bill of exchange, without allegation or proof of a consideration for the promise (b). A consideration is really necessary in these contracts, as it is in all other simple contracts arising from agreement; but a bill of exchange or a promissory note raises a primá facie presumption of value received for it, sufficient to sustain the promise, without further proof of consideration (c). The original negotiation and every indorsement of these instruments is presumed to have been made for value, until such presumption is rebutted by proof to the contrary (d). Consequently, if the consideration of a bill of exchange or promissory note is put in issue, the onus probandi lies on the party denying the consideration (e). There is a rule of law, however, that proof of fraud or illegality in the inception of the bill, or that it has been lost, or stolen, will turn the presumption the other way, and will compel the holder to prove that he gave consideration for it (ƒ). The adequacy of the consideration, in point of value, as an equivalent for the promise is immaterial in English law. The parties are at liberty to make what bargains they please; and, provided the consideration agreed upon is such that the law can recognize its existence, the adequacy of it in value (a) Pillans v. Mierop, 3 Burr. 1672, 1674; and see ante, p. 106. (b) See Clerke v. Martin, 2 L. Raym. 757; Brown v. Harraden, 4 T. R. 148; Byles on Bills, 8th ed. 108. (c) Per Abbott, C.J., Holliday v. Atkinson, 5 B. & C. 501, 503. (d) See Byles on Bills, 8th ed. 108. (e) Mills v. Barber, 1 M. & W. 425. (f) Mills v. Barber, 1 M. & W. 425, 432; Bailey v. Bidwell, 13 M. & W. 73; Smith v. Braine, 16 Q. B. 244; 20 L. J. Q. B. 201; Harvey v. Towers, 6 Ex. 656; Mather v. Lord Maidstone, 1 C. B. N. S. 273; 26 L. J. C. P. 58; and see ante, p. 282. dequacy of the con sideration. Adequacy as a return for the promise is left wholly to the estimation of sideration. the parties to the agreement (a). of the con Good and valuable considera tions. The consideration that the plaintiff would give up to the defendant a document, purporting to be a guarantee, was held sufficient, notwithstanding the document intended in the agreement and given up to the defendant was invalid as a guarantee; the Court saying that they could not inquire into the object or motive of the defendant in wanting the document (b). The execution by the plaintiff of an indenture of apprenticeship for binding the defendant's son to him as apprentice, was held to be a sufficient consideration for an I. O. U. given by the defendant to secure the premium, although the indenture was void by the statute 8 Anne, c. 9. s. 38, for not truly setting forth the consideration (c). The consideration that the plaintiff consented to allow the defendant to weigh two boilers of the plaintiff was held sufficient; because the defendant could not have obtained it without the plaintiff's consent, and the Court could not inquire into his reasons for wanting it, or what benefit he expected to derive (d). For some purposes what is called a good or meritorious consideration is recognized as distinguished from a valuable one. According to Blackstone" a good consideration is such as that of blood, or of natural love and affection,-being founded on motives of generosity, prudence, and natural duty.” The phrase "good consideration," as thus explained, imports merely the motive of natural affection towards relations, and excludes the element of compensation or equivalent for the promise which is essential to constitute a legal consideration. Hence a promise impelled by a good consideration only is a gratuitous promise (e). (a) Per Alderson, B., Pilkington v. Scott, 15 M. & W. 657, 660; Hitchcock v. Coker, 6 A. & E. 438, 456; Skeate v. Beale, 11 A. & E. 983, 992. (b) Haigh v. Brooks, 10 A. & E. 309. (c) Westlake v. Adams, 5 C. B. N. S. 248; dissentiente Williams, J.; and see Jackson v. Warwick, 7 T. R. 121. (d) Bainbridge v. Firmstone, 8 A. & E. 743. (e) 2 Bl. Com. 297; Story, Eq. Jur. § 354; and see Bret v. J. S., Cro. Eliz. 756; Tweddle v. Atkinson, 1 B. & S. 393, 398. It seems that the only purpose for which a good consideration may be effectual is to support a covenant to stand seised to uses; see 2 Bl. Com. 337; Shep. Touch. 512; Hayes' Introd. to Convey., 5th ed. 102. Deeds made upon good consideration only are considered as merely voluntary and are held void as against cre |