So, in Harris v. Richards, (i) which was an action of assumpsit; and the declaration stated, that whereas one Bond was bound to the plaintiff in an obligation of 401. for the payment of 207.; and whereas the defendant, was bound to one Hodges in an obligation of 1007. dated 5th February, 19 Jac. 1. for the payment of 55l. the 5th February following, and the said 20l. and 551. being due and not paid, that the defendant, the 1st of February 1624, which was in the 22d year of James the first, in consideration the plaintiff would forbear the payment of the 201. until 1627, and in consideration the plaintiff would compound with the said Hodges for the said 50%. and the interest then due, and deliver the said bonds into his hands, assumed to pay to him the said 20l. and the said 50l. and all the interest which he should pay or compound for; and alleges in fact, that he did forbear the said 201., and upon the 1st of March 1624 paid the said 50l. and 15l. for interest, and obtained the said bond into his hands, and that upon such a day, year, and place, he gave notice thereof to the defendant, and required of him payment thereof, according to his promise, who had not paid it, and therefore he brought this action. After verdict for the plaintiff, it was moved in arrest of judgment, that this action lies not; for it is no lawful consideration to pay interest. Sed non allocatur; "for it is to compound a forfeited bond, which is a good consideration; also it is no unlawful consideration to pay interest, not being more than is permitted." The second exception was, that there was not any consideration why the defendant should pay the 20%., for he had not any benefit thereby. Sed non allocatur; "for it is a sufficient consideration that the plaintiff at his request would bear it."

So, in the case of Davison v. Heslop, (k) which was an action of assumpsit; and it was alleged that Fenwicke was indebted to the plaintiff for arrears of an annuity of 1177. and appointed the defendant then his receiver, to pay it out of the rents, due at Martlemas next ensuing; and that the plaintiff and defendant accounted, and thereupon it appeared, that 1177. was due to him. The defendant promised that if the plaintiff would forbear, he would pay it within a month after. For the plaintiff, it was moved in arrest of judgment, that it did not appear that the defendant received any rent at Michaelmas, and the appointment was to pay it only out of the rents due at Martlemas. But to this it was answered, that it should be so intended now, the defendant having promised to pay it upon forbearance; and of this opinion were the court, and gave judgment for the plaintiff.

So, if A. sues a writ of privilege (1) against B., and B. in consideration that A. will at the request of B. forbear further to prosecute the said writ, promises 50l. to A. this is a good promise, though it be not averred

(i) Cro. Car. 272.

(k) 2 Lev. 20. Raym. 211. S. C.

(1) Bedwell v. Cotton, Hob. 216. 1 Danv. 47. pl. 6.

that the plaintiff had any good cause of action; for the promise implies a cause, inasmuch as B. desired a stay; this also requires a loss of the writ, and loss of the suit. So, where a plaintiff sued out a capias ad respondendum, (m) and after the return thereof, the defendant, in consideration the plaintiff would forbear further prosecution, promised to pay, &c. The Court held this a good consideration; and though the first return be past, yet an alias may be taken out; and judgment was given for the plaintiff. So, in the case of Jennings v. Harley, (n) which was an action of assumpsit; and the plaintiff declared that whereas one Basset was indebted unto him in 50%. and that he brought debt, and had judgment to recover, and thereupon sued out a capias ad satisfaciendum, and an exigent against Basset, who was thereupon outlawed, and that the plaintiff intended to sue a capias utlagatum; that the defendant, in consideration the plaintiff would forbear to proceed upon the capias utlagatum which he had sued out, until Easter Term next following, promised that if Basset did not pay the debt, that he would pay it; and alleged in fact a non-performance of the promise. The defendant pleaded non assumpsit, which was found against him; and after a verdict for the plaintiff, it was moved in arrest of judgment, that the action lay not; for this consideration is against law, and also void, because this process is at the queen's suit and not at the party's. But Gawdy, Fenner, and Yelverton, held that the consideration was good; for it is the party's suit as well as the queen's; for the party is the means to entitle the queen thereto, and the party hath the special carriage thereof; and if the sheriff suffer the party arrested upon such a capias utlagatum to escape, it is an escape against the plaintiff. Popham è contra: "For the suit is merely now the queen's suit, and a means whereby the party may have his execution. For as the queen is entitled thereto by the party, so, after the outlawry, the party is thereto by the queen, and that issueth for the contempt to the queen. And if the party will not take it, the queen's attorney may sue it out; and the queen is not of right bound to satisfy the party out of the goods which are seized by this writ, although she doth it out of grace many times. But a petition of right lieth not in such case: and although the plaintiff hath advantage thereof, in regard of the party who is taken thereby to be in execution (which is the reason that he may have debt upon the escape), yet he cannot stay the execution of this writ, so the consideration is void." But, notwithstanding, the other judges gave rule, that if other matter were not shown before such a day, judgment should be entered for the plaintiff, and that the defendant might bring his writ of error. And no cause was afterwards shown, &c.

So, if A. exhibits a bill in Chancery (0) against B. supposing thereby

(m) 2 Keb. 200. pl. 5. 1 Vin. Abr. 323. pl. 47.

(n) Cro. Eliz. 909. Yel. 19. S.C.

(o) 1 Danv. 46. pl. 5. Raym. 372.

that he had delivered 300l. to B., in trust, upon which B. in consideration that A. would end all suits against him in Chancery, promises to pay him 1007.; in this case though A. has remedy for it at common law by writ of account, yet this is a good consideration, so as to have an action upon the case upon the assumpsit, because the money was delivered in trust, which is proper for the Chancery, and the suit there is a matter of charge. So, if A. promises B. in consideration that he will not sue an attachment out of Chancery (p) upon a decree which is there against him, that then he will pay 207. (it seems it is intended that the decree was at his suit) this is a good consideration to maintain an action upon the case, for hereby shall he avoid the imprisonment of his body, of which the Chancery had power for the contempt of the decree.

If an heir be bound by a bond of his ancestor, and has assets; and in consideration that the obligee will forbear to sue him, he promises to pay the money due thereon, an action of assumpsit will lie upon this promise: but if the heir is not bound by the bond, no action is maintainable. Thus, in the case of Barber v. Fox, (q) which was an action. of assumpsit, and the declaration stated, that whereas one Anthony Fox, the father of the defendant by his writing obligatory became bound to the plaintiff in 921. 12s. upon condition to pay him 517. 16s. at a certain day past, which was not paid, and so the obligation became forfeited, and afterward Anthony Fox, the father, died, and the defendant was his son and heir; wherefore the plaintiff intended to sue the defendant as son and heir on the said bond; and the defendant having notice of it, in consideration that the plaintiff, at the special instance and request of the defendant, would forbear his intended suit against the defendant as son and heir on the said bond, undertook and promised the plaintiff to pay him the said 517. 16s. on request; and the plaintiff averred forbearance, and yet the defendant had not paid the said money, although on such a day and year he was requested, &c. On non assumpsit pleaded, a verdict was found for the plaintiff. But it was afterwards moved in arrest of judgment, that there was no consideration; for it does not appear that the defendant was sueable upon this bond as son and heir, for it is not shown that Anthony Fox, the defendant's ancestor, whose son and heir he is, had bound himself and his heirs by the said bond; and if the heir is not bound expressly by name, he is not bound at all; and therefore here was no consideration to found this promise; wherefore judgment was staid until it should be moved on the other side. Afterwards Saunders, for the plaintiff, moved for judgment, and said, "That though the declaration would have been bad on demurrer, yet is now made good by the verdict; for the jury have found that the defendant was bound as heir in the said bond, for otherwise there was

(p) Cro. Eliz. 768. 1 Rol. Abr. 30. Y. (q) 2 Saund. 136. pl. 1. 1 Danv. Abr. 55. pl. 43.

no consideration; and they ought to have found that the defendant did not undertake, &c. if there was no consideration, or otherwise they might be attainted for a false verdict; but they having found, that the defendant did undertake and promise as the plaintiff has declared, it ought of necessity now to be intended that Anthony Fox had bound himself and his heirs by the same bond." But the Court said, "Though they would intend a personal lien against an executor, if he has assets in his hands, though it be not averred, yet they will not intend a real lien against an heir; though he be bound by the bond of his ancestor, unless it is expressly alleged; and therefore they would not intend it here, though it be after verdict; wherefore judgment was arrested." The learned editor of Saunders's Reports, in a note upon this case, shows a clear distinction between the liability of an heir and an executor, upon a promise to pay the debt of the ancestor or testator; and he there brings together the different cases on this subject.

Upon the same principle that a promise, in consideration of forbearance to sue where there is no cause of action, is void, it has been determined, that where a married woman gave a promissory note as a feme sole, but after her husband's death promised to pay it in consderation of forbearance to sue, no action lies on such a promise; because the note being void, no cause of action existed against her at the time of making the promise. (r). So, if an infant enters into an obligation for a certain sum of money, and afterwards the obligee brings debt upon the obligation, and procures a latitat to arrest him, and the obligor being of full age, and having notice thereof, comes to the obligee, and says to him, that if he would not arrest him he would pay him the money, this is not any consideration to maintain an action, inasmuch as the infant might have avoided the obligation by plea. (s) Again, if an infant takes up certain commodities of a mercer in London, at a certain price, who afterwards, for non-payment of the money, threatens to sue him, and the mother of the infant promises to pay him if he will not sue her son, this is not any consideration to maintain the action, inasmuch as the infant was not by law chargeable for the money. (t) So, if A. be indebted to B. by bill, and B. is indebted to C., and B. in recompence of his debt due to C. assigns the bill of A. to him, and, before the day of payment of the money, A. comes to C. and promises him that if he will forbear him the payment of the money for a week, that then he will pay him; upon which C. forbears him; yet this is not any considerarion to maintain an action upon this promise; because, notwithstanding the assignment of the bill, yet the property of the debt remained always in the

(r) 1 Stra. 94.

(s) 1 Rol. Abr. 18. l. 50. 1 Danv. 46. pl. 2. Cro. Eliz. 700. But see Dy. 272.

b. marg. Cro. Eliz. 127. 1 Leon. 110

contra.

(t) Danv. Abr. 46. pl. 1.

219 assignor. (u) But if A. is indebted to B. in 20., and thereupon B. makes a letter of attorney to C. to put him in suit, and to recover the debt to his own use, and to release it at his pleasure, and after A., in consideration that C. will forbear to sue him for a certain time, promises C. to pay the debt, this is a good consideration; for the forbearance of the suit whereof he had power is a meritorious consideration. (v)

So, an action of assumpsit will lie upon a promise to pay money in consideration of discharging a debt, or giving up securities. Thus, if A. be indebted to B. in 2001. and A. appoints B. to receive it from C., and for the better satisfaction of B., A. delivers certain bills of exchange to one D., the factor of B., for payment thereof; and upon this C. promises B. that in consideration that he would deliver to him the said bills of exchange, so delivered to D., the factor of B., that he would pay the said 2007. due by A. to B., this is a good promise, for the consideration is valuable; for though C. can do nothing with the bills, being a stranger to them, yet it may be some advantage to him to have the possession of them, at least it may be some prejudice to B., and therefore the consideration is good. (w) So, if L. be indebted to M., and L. delivers to M. certain goods to the value of 100%. as a pawn till he pays him the debt, and after J. S. comes to M. and promises to pay him the debt, in consideration that he will deliver to him the said pawn, upon which he delivers it to him accordingly; this is a good consideration to have an action upon the case against J.S.(x) And in the case of Meredith v. Chute, (y) which was an action of assumpsit, wherein the plaintiff declared that the defendant, in consideration that the plaintiff, at the special request of the defendant, deliberasset to the defendant quandam notam, by which one Hurst assumed to pay to the plaintiff a hundred guineas, assumed to pay to the plaintiff, &c. Upon non assumpsit pleaded, and a verdict for the plaintiff; it was moved in arrest of judgment, that the consideration of this promise was not good, since it did not appear that Hurst gave this note to the plaintiff upon any good consideration, and consequently the said note would be void, and then the delivery of the said note by the plaintiff to the defendant would be no prejudice to the plaintiff, nor advantage to the defendant. But it was resolved, (per totam curiam,) that this was a good consideration; for though no consideration was expressed in Hurst's note, yet the note being subscribed by Hurst was good evidence of debt due from Hurst to the plaintiff; and therefore the delivery of the evidence of his debt to the defendant at his request was a good consideration of the assumpsit of the defendant, upon which this action was brought. And

(u) 1 Vin. Abr. 304. pl. 12. See also

1 Saund. 210. n. 1. 1 Rol. Abr. 20. 1. 20.

1 Ventr. 154. Hard. 74. Moor. 701. Cro. Eliz. 653. 1. Rol. Abr. 26. 1. 30.

(0) 1 Rol. Abr. 20. pl. 11. 1 Vin. Abr. 304, pl. 11. 1 Saund. 210. n.

(w) 1 Danv. 50. pl. 21.
(a) 1 Danv. 47. pl. 8.
(y) 2 Lord Raym. 759.
7 Mod. 12. S.C.

Salk. 25.