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verdict for the plaintiff, it was objected, in arrest of judgment, that there was no consideration for the promise; for that, if an action had been brought in the name of the obligee of the bond, the agreement of the assignee to forbear, would have been no defence (upon a ground which I have already sufficiently explained, namely, that an obligation by deed cannot be discharged by an agreement without deed). The Court, however, decided that the consideration was sufficient; "for" (said the Lord Chief Justice)," although the agreement to for bear would not be pleadable to an action in the name of the obligee, yet, unless the plaintiff did forbear according to his agreement, he would not be able to sue on the defendant's promise." Thus again in Willats v. Kennedy, 8 Bing. 5, 21 E. C. L. R., the plaintiff, who had been appointed by the Court of Chancery a receiver of the debts and moneys of a firm, agreed to give time of payment to a person who owed money to the firm, in consideration of which a third person promised to guarantee the debt. So, in an action against that third person, it was objected *that there was no sufficient consideration for his promise; the Court of Common Pleas, however, decided that there was so. Upon the effect of forbearance as a consideration, you may see further Parker v. Leigh, 2 Stark. 229, 3 E. C. L. R.; Atkinson v. Bayntun, 1 Bing. N. C. 444, 27 E. C. L. R., and Smith v. Algar, 1 B. & Ad. 603, 20 E. C. L. R., which is an exceedingly strong case. In that case the plaintiff had obtained judgment against Elizabeth Mackenzie for 577. debt, and 65 shillings costs; and in consideration that the plaintiff would forbear to execute a fieri facias on her goods, the defendant undertook to pay him 1077. in three days. It was objected that there was no con

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And see, also, the notes to Forth v. Stanton, 1 Saunders, 210.

sideration, or, at least, no sufficient consideration; but Lord Tenterden said, "It is true the plaintiff might not perhaps have been entitled to recover to the full extent of 1077., though it is to be observed, he might have levied the costs of the execution in addition to the sum given by the verdict. But he had a right at least to levy 607., and if, in consideration of his forbearing that, the defendant promised to pay him the larger sum; if the inconvenience of an execution against these goods at the time in question was so great, that the defendant thought proper to buy it off at such an exI do not see that the consideration is insufficient for the promise." (a)

pense,

(a) The forbearance to prosecute an action is not a valid consideration for a promise to pay a sum of money to the plaintiff, unless there be a good cause of action. This point has been very recently determined in the case of Wade v. Simeon, 15 Law Journ. C. P. 114; since reported, 1 Com. Bench, 610, 50 E. C. L. R., where issue had been joined in a previous action for the recovery of a sum of money from the defendant, who had there promised to pay the money and costs, in consideration that the plaintiff would forbear further proceedings. An action having been brought upon this promise, the defendant pleaded that the plaintiff never had any cause of action against the defendant in respect of the subject-matter of the said action. "To that," said Tindal, C. J., in giving judgment, "the plaintiff has demurred, and, doing so, admits the statement contained in it, that he had no cause of action in the original suit, to be true. Having made that admission, it appears to me that he is estopped from saying that there was any valid consideration for the defendant to promise. is almost contra bonos mores, and certainly against all legal principle, that when a man knows that he has no cause for it, he should still persist in prosecuting an action. Then, in order to establish a binding promise, the plaintiff must show a consideration for it, consisting of something which is either beneficial to the defendant, or detrimental to the plaintiff. It cannot, however, be said that the foregoing of such an action can be regarded by a Court as beneficial to the defendant, because he thereby saves the risk of defeat, and the extra costs which he would necessarily incur in his defence, for we must assume that the result of the action would have been in his

It

*Again, it has been decided that if I intrust a man to do some act for me, although I am to

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favour, and the law would enable him to recover costs, which it regards as a compensation for all the costs the defendant sustains. Neither can the foregoing of the action be regarded as detrimental to the plaintiff, for we can only view it as saving him from the payment of those costs. The consideration, therefore, fails upon both grounds."

On the same principle, the mere fact that disputes and controversies are pending between two persons is no sufficient consideration for a promise to pay money, unless it appear that something was really due, or that the accounts were open or unsettled, the amount due being alone in doubt, to settle which the promise was given: for the withdrawal of a bona fide claim, though unascertained in amount, would be a valid consideration; Edwards v. Baugh, 11 M. & W. 641, and Lewellyn v. Lewellyn, 14 Law Jour. Q. B. 4, per Coleridge, J. And where a man who has a judgment debt takes from his debtor a promissory note for the amount, payable at a certain time, it must be inferred that he thereby enters into an agreement to suspend his remedy for that period, and if so, that is a good consideration for the giving of the note. Baker v. Walker, 14 M. & W. 468.1

1

The above note states correctly the course of decision observed by the courts of common law in England, and in a recent case, Kaye v. Dutton, 7 Man. & Gr. 807, 49 E. C. L. R., the Court of Common Pleas went a step further, by holding that an actual release was an insufficient consideration where there was no interest on which the release could operate. But since at least the time of Lord Macclesfield, courts of equity, in a train of decisions following the case of Stapilton v. Stapilton, 1 Atkins, 2, have done all in their power to sustain family arrangements and compromises, and decreed performance of the instruments springing from them, "albeit, perhaps," said the present Chancellor, "resting upon grounds which would not have been considered satisfactory if the transaction had been between mere strangers," per Sugden, Ch., in Westby v. Westby, 2 Drury & Warren, 503. Even, however, when such has been the case, it seems to have been held that if a person deliberately enter into an agreement for the purpose of compromising a claim made bona fide, and of whose nature and extent there is no such concealment or misrepresentation on the other side, as would, upon these grounds, vitiate the transaction, such a compromise is a sufficient consideration for the

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V.

*pay him nothing for performing it, still the mere trust which I repose in him is a considera

agreement, and it will be enforced in equity if not at law; Attwood 1 Russell, 353; Pickering v. Pickering, 2 Beavan, 56; Bailey v. Wilson, 1 Dev. & Bat. Ch. 182; Moore v. Fitzwater, 2 Rand. 442; nor will the court inquire into the adequacy of the consideration, for, as Sir John Leach has well observed, "if a court is, in such case, to be governed by its judicial opinion upon the rights of the parties, then to him who, by that opinion, is held to be entitled to the whole property, no consideration can be really adequate which is less than the whole, and no compromise can ever bind the successful claimant;" Naylor v. Winch, 1 Sim. & Stu. 565. These equitable principles have, on this side of the Atlantic, been very generally applied in common law courts, and the compromise of a doubtful claim is deemed not only a sufficient consideration to support a promise, but is highly favoured; Perkins v. Gay, 3 Serg. & Rawle, 327; Barlow v. Ocean Ins. Co., 4 Metcalf, 270; Tuttle v. Tuttle, 12 Id. 537; Stoddard v. Mix, 14 Connect. 12; Fisher v. May, 2 Bibb, 488; and there would seem to be little doubt, that where such a compromise has been effected by the doing of any act, such as discontinuing a suit, releasing a lien, or the like, a sufficient consideration is thus formed, although the ground of the consideration may have been without foundation, and thus arises a distinction between a mere forbearance to sue, where the agreement is entirely executory, and a compromise of a demand, resulting in something being actually done. Thus in O'Keeson v. Barclay, 2 Pennsylv. 531, a slander suit, in which the words laid were not actionable, was compromised by the giving a note for $100, and the judgment of the court below ordering a verdict for the defendant in an action brought on that note, was reversed by the Supreme Court. So, in Holcombe v. Stimpson, 8 Vermont, 141, where the maker of a note offered to prove that it was given in compromise of a prosecution for bastardy, and that he was absent from the country for a time far beyond the ordinary term of gestation, it was held that there being no evidence of fraud or imposition, the evidence was rightly excluded. On the other hand, in Cabot v. Haskins, 3 Pick. 83, where one supposing himself liable to the United States, when by law he was not, promised to assume a certain liability, the other party promising to pay him a certain sum therefor, it was held that the danger, being a mere ideal one, could not form the substratum of a promise, and the distinction here adverted to, was expressly taken by the court in Stoddard

tion for a promise on his part to conduct himself faithfully in the performance of it. (See Whitehead v. Greetham, 2 Bing. 464, 9 E. C. L. R.; Shillibeer v. Glynn, 2 M. & W. 143.) Nay, so far do the cases on this subject go, that it is settled that not only is the reposal of such trust a sufficient consideration for an express promise on the part of the person in whom it is reposed to conduct himself faithfully in the performance of it, but the law, even in the absence of an express promise, implies one that he will not be guilty of gross negligence. This was the point decided in the famous case of Coggs v. Bernard, 2 Ld. Raym. 909.1 And on this point of the law it is that the celebrated distinction occurs between remunerated and unremunerated *agents; from the former of whom the law implies a promise that they will act with reasonable diligence; from the latter, only that they will not be guilty of gross negligence. (See Beauchamp v. Powley, 1 M. & Rob. 38; Doorman v. Jenkins, 2 Ad. & Ell. 256, 29 E. C. L. R.; Dartnal v. Howard, 4 B. & C. 345, 10 E. C. L. R.) And the other equally remarkable distinction, namely, that a remunerated agent may be compelled to enter upon the performance of his trust, or at least made liable in damages if he neglect to do so, whereas an unremunerated agent cannot, although, as we have seen, he may be liable for misconduct in the performance of it. (See Elsee v. Gateward, 5 T. R. 143.)

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Again, if one man is compelled to do that which another man ought to have done, and was compellable

v. Mix, supra, as it was in Edwards v. Baugh, 11 Mees. & Welsby, 641. See a note upon this subject to the case of Stapilton v. Stapilton, 2 White's Eq. Cas., Part 2, p. 265.

The student may be referred to an able note to this case, in 1 Smith's Leading Cases, 244, 4th Am. ed.

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