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rection gave the real value of the horse, 81., as damages; and it is to be collected, that the contract was considered valid; for the report states, that there was afterwards a motion to the court in arrest of judgment, for a small fault in the declaration, which was overruled, and the plaintiff had judgment (9).
And where in an action of assumpsit it was alleged, that in consideration of 26s. 6d. paid, and 41. 17s.6d. to be paid, the defendant promised to deliver two rye corns on the then next Monday, and double in geometrical progression every succeeding Monday, (or every other Monday,) for a year, which would have required the delivery of more rye than was grown in the whole year, the court on demurrer seemed to consider the contract good; and Powell, J., said, that although the contract was a foolish one, yet it would hold good in law, and that the defendant ought to pay something for his folly; but no judgment was given, the case being compromised (r).
So in respect to the extent of trouble, loss, or obligation, which the promisee has taken upon himself, at the promiser's request, we shall observe, upon considering the cases presently referred to, that it is immaterial that the detriment or charge thus assumed, is, in fact, of the most trifling description, provided it be not utterly worthless in fact and in law; and that to constitute a good consideration no benefit need result to the promiser from the performance of the stipulated act by the promisee, according to the agreement (s).
In an action of assumpsit, it appeared that the plaintiff had made a lease to J. S. of lands for life, rendering rent. J. S. granted all his estate to the defendant. The rent being in arrear, the plaintiff applied to the defendant for it; who thereupon promised, that if the plaintiff could “ show him a deed that the rent was due,” (which the plaintiff did,) the defendant would discharge it: "and it was moved in arrest of judgment, that there was no consideration to ground an action ; for it is but the showing of the deed, which is no consideration ; but it was adjudged for the plaintiff'; for when a thing is to be done by the plaintiff, be it never so small, this is a sufficient consideration to ground an action, and here the showing of the deed is a cause to avoid suit (t). So the giving up a letter by the plaintiff to the defend
ant at his request, by means of which the defendant was enabled to settle certain controversies, and obtain a large portion of O.'s effects, to which defendant claimed to be entitled, was held to be a sufficient consideration to support a promise by defendant to pay plaintiff 10001. (m). So where a declaration stated that in consideration plaintiff would at defendant's request permit the latter to weigh certain boilers of the plaintiff, the defendant promised to give them up to plaintiff in the same condition as they were in at the time of such consent; it was held on motion in arrest of judgment, that there was a sufficient consideration stated, and Lord Denman, C.J., observed," I think the declaration good. The defendant requests to be allowed to weigh certain boilers belonging to the plaintiff; he can only do so by the plaintiff's permission, in consideration of which he makes the promise alleged; the promise following as of course. We need not inquire into the nature of the benefit derived to the defendant. The plaintiff may have sustained some damage by complying with the defendant's request, and that is enough after verdict (n)."
A woman, after the decease of her husband, promised the plaintiff, a creditor, that if he would prove that her husband had owed him 201., she would pay it; and it was held a good consideration; “ because it was a trouble and charge to the creditor to prove his debt (0).
The waiver of a tort, by committing which the defendant derived a benefit, (although such tort occasioned no real injury to the plaintiff,) is a sufficient consideration for a promise by him(p).
A declaration stating that the defendant was indebted to the plaintiff on a bill of exchange, and that the plaintiff having lost the bill, had at the defendant's request given him a bond, acknowledging payment, and conditioned to indemnify him against the bill, shows a good consideration for a promise by the defendant to pay the contents of the bill; for it is a disadvantage to the plaintiff, if it were of no advantage to the defendant, that the bond was executed (9). And it is a sufficient consideration for a promise of indemnity, &c., that the plaintiff had merely secured
(m) Wilkinson v. Oliveira, 1 Bing Brealey v. Andrew, 2 Nev. & P. 114; N. C. 490.
7 Ad. & E. 108, S. C. (n) Bainbridge v. Firmston, 1 P. & (9) Williamson v. Clements, 1 Taunt. Dav. 2.
523 ; see Hansard v. Robinson, 7 B. (0) Trarer v. -- 1 Sid. 57. & C. 90, 94. (p) Duvis v. Morgan, 4 B. & C. 8;
by promissory notes and a cognovit, the payment of a sum of money to the defendant, as assignee of a bankrupt (r).
In order to facilitate the making of an agreement, for which there was a suflicient consideration between the plaintiff and a third person, the defendant, who personally received no benefit from the agreement, became a party thereto ; and it was held, that as the agreement was such as the plaintiff would not have made, and therefore would not have subjected himself to liability, unless the defendant had acceded and become a party to the contract, there was a sufficient consideration for the promise of the latter (s). So where the declaration stated that the defendants being in possession of certain mortgage deeds, of which H. R. was desirous to obtain an assignment, by the payment of 5001., the plaintiff consented, at H. R.'s request, to accept bills to that amount, drawn by H. R., upon H. R.'s procuring the defendants to deliver the mortgage deeds to the plaintiff as a security, that the defendants, in consideration of the plaintiff's accepting the bills, undertook to deliver the deeds to him on his paying them the amount of the bills ; it was held that there was a good consideration for defendants' promise (t).
The plaintiff, an occupier of lands, having been sued with others by the vicar for tithes, gave up the occupation, and quitted the parish during the progress of the suit; upon which the defendant, a landowner in the parish, undertook to indemnify him from all costs, if he would suffer the defendant to defend the suit in his (the plaintiff's) name; and it was held, that there was a sufficient consideration for the defendant's promise (u).
In an action of debt for fish due for tolls, the plaintiff claimed a right, under a custom, to take the second best fish out of every boat-load of fish, by way of toll, from fishermen frequenting a certain cove and landing fish therein. It was proved that the plaintiff and his ancestor had immemorially furnished and maintained a capstan and rope, for the use of the fishermen, and that in stormy weather boats could not be drawn up from the sea with safety to the crews without them; that the spot upon which the capstan stood belonged to the plaintiff, but the rest of the cove
(r) Ikin v. Brook, 1 B. & Ad. 124.
(s) Bailey v. Croft, 4 Taunt. 611; see Mocatta v. Francis, 3 Dougl. 11, as to an agreement to take part of a government loan.
(1) Tipper v. Bicknell, 3 Bing. N.
C. 710; 4 Scott, 462, S. C. The declaration was drawn by the author, and settled by Serj. Stephen.
(u) Adams v. Dansey, 6 Bing. 506 ; 4 M. & P. 245, S. C.
over which the boats were drawn was the property of a third person. It was held that the keeping the capstan and rope in good order and ready for use, was a good consideration for the toll, whether the capstan were used or not (x). And the forbearance by the plaintiff at the defendant's request to enforce a fieri facias against the goods of a third person for 601., is a valid consideration for the defendant's promise to pay the plaintiff 1071. in seven days (y).
So it is a sufficient consideration for a promise, that the plaintiff undertook to endeavour to perform any act, at the defendant's request, as to procure the lease of a house, or a note from a debtor, &c. (z); for this must be an inconvenience to the plaintiff, and might eventually benefit the defendant. But in such a case a bonâ fide exertion on the part of the plaintiff, to attain the proposed object for the defendant, would be necessary.
The merely giving leave of absence to a soldier at the instance of a third person, has been held to be a good consideration for a promise by the latter to the captain who gave such permission, that the soldier should return in ten days, or that the promiser would pay the captain 201. (a).
But we shall presently see that a holding or surrender of a demise, strictly at will, is not in general a sufficient consideration for a promise (b).
Forbearance.- An agreement to forbear for a certain or reasonable time to institute or prosecute legal or equitable proceedings for a well-founded legal or equitable demand, is also a sufficient consideration for the promise of the debtor, or a third person, to pay the debt or more, or do any other act (c). By
(1) The Earl of Falmouth v. George, (c) See 1 Rol. Ab. 24, pl. 33; Com. 5 Bing. 286; 2 M. & P. 457, S. C. Dig. Action upon the Case upon As
(y) Smith v. Algar, 1 B. & Ad. sumpsit, (F) 8, Assumpsit, (B) 1; 2 603; post, 38, and note (u).
Saund. 136; 3 Chit. Com. L. 66, 67. (2) Gurnons v. Hodges, Yelv. 11; As to the mode of laying the considerLampleigh v. Braithwaite, Hobart, 105. ation and averring forbearance, see 2 See Cum. Dig. Action upon the Case Chit. Pl. 5th ed., 252 a; 7 B. & C. upon Assumpsit, (B), (b. 5.)
423 ; 1 M. & Ry. 708, S. C.; 2 M. & (a) Taylor v. Jones, i Lord Raym. P. 482, 487 ; 5 Bing. 295, S. C. As 312. A mere request to a sheriff not to forbearance by husband and wife, to execute a writ of fieri fucias at the Nurse v. Willis, 4 B. & Ad. 739; suit of the promiser, held a sufficient ante. A promise by a bankrupt to consideration, after judgment by de- pay a creditor in full if he would fault, and error brought; Pullin v. prove under his commission, is bad Stokes, 2 H. Bl. 312.
for want of consideration; Brealey v. (b) Post, 46.
Andrew, 2 N. & P. 114; 7 Adol. & E. 108, S. C.; but semble, if the pro- terden, C. J., Smith v. Algar, 1 B. & mise were made in consideration that Ad. 604. the creditor would waive a tort, and (5) Post, 45. prove under the commission, it might (g) Barber v. For, 2 Saund. 136, be binding; id.
such forbearance the creditor is delayed, and the debtor is, or may be benefited; so that there concur both the ordinary grounds upon which a sufficient consideration may be rested. Forbearance for a given time, on the part of the assignee of a bond, to sue the obligors, is a good consideration for a promise by the obligor to pay the assignee at the expiration of that time, or give him a warrant of attorney for the amount (d).
In order to render the agreement to forbear, and the forbearance of a claim, a sufficient consideration, it is essential that such claim should be sustainable at law or in equity: the consideration fails if it appear that the demand was utterly without foundation (e), though the giving up a doubtful claim and suit will suffice (f). Therefore the promise of an heir to pay his ancestor's bond, in consideration of forbearance to sue him thereon, is not binding if the bond did not expressly name, and consequently did not bind the heir of the obligor (g); but it seems that if the heir be named in the bond he may be liable in such case, although he have not assets by descent (h). So the promise of an heir, in consideration of forbearance of a suit in chancery, to which he was not liable, will not support an assumpsit (i). Where the plaintiff declared that A., since deceased, was indebted to him in a certain sum, and that after A.'s death, in consideration of the promises, and that the plaintiff would, at the defendant's request, forbear and give day of payment of the debt, (not stating to whom he was to forbear,) the defendant promised, &c., the court held, upon demurrer, that the declaration was defective, upon the ground that it was not shown that there was any personal representative or other person who was liable to the debt; and consequently, that it did not appear that the plaintiff could have sustained any detriment by suspending proceedings (k).
and notes. Promises by an executor (d) Morton v. Burn, 2 N. & P. 297; will be considered hereafter. 7 Ad. & E. 19, S. C. The mutuality (h) Id. 137 a. of this contract consists in the forbear- (i) Id. Tooley v. Windham, Cro. ance by the assignee, being a condition Eliz. 206. precedent to any right to sue on the (k) Jones v. Ashburnham, 4 East, promise.
455. It is observable that this case (e) See Com. Dig. Action upon the was upon demurrer. The Court disCose upon Assumpsit, (F) 8; Jones v. tinguished it from some cases which Ashburnhum, 4 East, 455; per Ten- were cited by the counsel, and in