original debt. But the objection was over-ruled, because the original debt being due to the plaintiff, as executor, the action to recover that must have been in the detinet; but by the agreement on the part of the plaintiff to take a less sum, and the promise by the defendant to pay that sum, it became the proper debt of the plaintiff, and the action for it maintainable in his own name, without being named executor. And (by Yelverton, Justice,) although the less sum is not any satisfaction of the greater, because they are both of one nature, yet in respect that the nature of the action was changed, it was, therefore, a good consideration.

In order to facilitate the making of an agreement, for which there was sufficient consideration between the plaintiff and a third person, the defendant, who received no benefit to himself by the agreement, became party thereto; it was holden, that as the agreement was such as the plaintiff would not have made, unless the defendant had acceded, there was a sufficient consideration for the defendant's promise".

Forbearance of Suit-in what Cases a sufficient Consideration. If a creditor, at the request of his debtor, forbear to sue him for a certain time, that is a sufficient consideration for a new promise, by the debtor for the non-performance of which an action of assumpsit may be maintained. So if a creditor at the request of J. S. forbear to sue his debtor for a certain time t, that is a sufficient consideration to support a promise by J. S. to pay the debt. But by Stat. of Frauds, 29 Car. 2. c. 3. s. 4. this agreement must be in writing ". Forbearance to sue an executor (having assets) for a certain time upon a simple contract debt of his testator, is a good consideration to found a promise by the executor to pay the debt *. So forbearance to sue an executor for a reasonable time for the debt of his testator, although the executor have not assets; but the agreement by the executor to pay the debt must be in writing, otherwise it will be void by Stat. of Frauds, 29 Car. 2. c. 3. s. 4. That a forbearance to sue may be a good consideration, such forbearance must either be absolute a, or for a definite portion of time b, or a reasonable time; forbearance for a little 4, or some time, is not sufficient. In cases

■ Bailey v. Croft, 4 Taunt. 611.

t Roll. Abr. 27. pl. 49.

z Grindall v. Davies, 1 Freem. 532.

a Mapes v. Sidney, Cro. Jac. 683.

u King v. Wilson, per Raym. C. J. b Fish v. Richardson, Cro. Jac. 47.

Str. 73.

x Fish v. Richardson, Cro. Jac. 47.

and Yelv. 55. Confirmed in Bond v. Payne, Cro. Jac. 273.

y Johnson v. Whitchcott, 1 Roll. Abr. 24. pl. 33.

c Johnson v. Whitchcott, 1 Roll. Abr. 24. pl. 33.

d 1 Roll. Abr. 23. pl. 25.

e Id. pl. 26.

where an action is brought against a defendant, on a promise made, in consideration of forbearance of suit, an objection will not be allowed, after verdict, that the declaration does not state how the original debt accrued; for this is only inducement to the action. So if the declaration omit to state to whom the plaintiff forbore and gave day of payment, the omission will be cured by verdict. But, upon special de-, murrer, it has been holden not sufficient to state a consideration to forbear generally, unless it be also shewn, that there was some person to be forborne. Plaintiff declared, that B., since deceased, was at his death indebted to the plaintiff in a sum of money for goods sold and delivered, whereof defendant Nancy had notice, and thereupon, after the death of B. defendant Nancy, before her marriage with other defendant A. in consideration of the premises, and also in consideration that plaintiff would forbear and give day of payment of said sum of money, as aftermentioned, by note in writing, signed by her according to the statute, &c. on 20th March, 1801, promised plaintiff to discharge the debt in a reasonable time: That plaintiff had forborne from the time of the promise hitherto, yet defendant refused to pay special demurrer, assigning for causes, that it was not alleged, from whom said sum of money was due at time of promise, or that any person was then liable to pay the plaintiff that sum, or to whom plaintiff had forborne, and given day of payment of said sum, and in general, that declaration did not disclose any legal and sufficient consideration for the supposed promise, or any good cause of action. The court were of opinion, that the declaration was bad, observing, that "it is a known rule of law, that to sustain a promise, or to render it obligatory, there must be either a benefit to the party making the promise, or some loss or disadvantage to the party to whom such promise is made; otherwise it is considered as nudum pactum, and cannot be enforced. It is improperly termed a forbearance to sue, when it is not shewn that there was any person liable to be sued, from whom satisfaction might have been obtained, and in respect to whom plaintiff may have been said to have forborne suit, at the time when the promise was made. There might not have been any administrator, or if administration granted, any assets of the deceased; or the deceased might have been a bastard, and have had no legal representatives entitled to take out administration of his effects." The consideration of forbearance is not confined to forbear

f Austen v. Bewley, Cro. Jac. 548. Therne v Fuller, Cro Jac. 396.

g Marshall v. Birkenshaw, 1 Bos. and Pul. N. R. 172.

VOL. I.

E

h Jones v. Ashburnham and Nancy, ux. 4 East, 455.

ance from suing by action; for forbearance to sue, though the party is liable in equity only, or desisting from a suit in Chanceryk, or the giving up a suit instituted in the Admiralty Court, to try a question respecting which the law is doubtful, has been holden to be a good consideration. So desisting from further complaint before a justice of the peace; so forbearing to proceed upon a capias utlagatum » ; so staying the trial of a cause after issue joined o, is a good consideration for a promise to pay the costs incurred. Neither is it necessary to shew a consideration equally extensive with the promise; for forbearance by plaintiff, at defendant's request to enforce a fi. fa. against the goods of a third person for £60 is a valid consideration for defendant's promise to pay plaintiff £107 in seven days.

In what Cases Forbearance of Suit is not a Consideration.— Forbearance of suit against a defendant, where originally there was not any cause of action, is not a consideration to support an assumpsit; A. and B. were bound jointly and severally in a bond 9 to C. who released to A. Afterwards B., in consideration that C. would forbear to sue him for the payment of the money due on the bond, promised to pay it. On assumpsit brought, and a special verdict, the court were clearly of opinion, that the debt having been entirely discharged by the release made by the obligee to A., there was not any consideration whereon an assumpsit might be grounded. So where in assumpsits, it was stated, that there were controversies between the plaintiff and defendant, concerning the profits of certain lands, which the father of the defendant had taken in his life-time, and that the plaintiff had purchased a writ out of chancery to the intent to exhibit a bill against the defendant for the said profits; the defendant, in consideration that the plaintiff would surcease his suit, promised the plaintiff that if he could prove, that the father of the defendant had taken the profits, or had the possession of the lands, under the title of the father of the plaintiff, he, defendant, would pay the plaintiff for the said profits. After verdict for the plaintiff upon non-assumpsit, the court were of opinion, that there was not any good consideration; for it was not alleged that the defendant was heir or executor, and even if it had

i Scott v. Stephenson, 1 Lev. 71. Dowdenay v Oland, Cro. Eliz. 768. 1 See also Coulston v. Carr. Cro. Eliz.

847.

m Longridge v. Dorville, 5 B. & A. 117.
Rippon v. Norton, Cro. Eliz. 881.
n Jennings v. Harley, Cro. Eliz. 909.
and Yelv. 19.

o Smith v. Algar, 1 B. & Ad. 603.
p Dell v. Fereby, Cro. Eliz. 868.
q Hammon v. Roll, March, 202.
r 1 Inst. 232. a.

s Tooley v. Windham, Cro. Eliz. 206.

been so alleged, yet there was not any cause to charge him for a personal tort. Judgment for defendant. So where the declaration stated, that the father of the defendant became bound to the plaintiff by bondt, with a penalty, conditioned for the payment of money at a day past, and which was not paid, and afterwards the father died; and the plaintiff intending to sue the defendant as son and heir on the bond, the defendant, in consideration that the plaintiff would forbear his intended suit against the defendant, promised to pay the debt. After non-assumpsit pleaded, and verdict for the plaintiff, a motion was made in arrest of judgment, on the ground that there was not any consideration; for it did not appear, that the defendant's ancestor had bound himself and his heirs, and if the heir was not bound expressly by name, he was not bound at all. Judgment arrested (5). So where testator was indebted to the plaintiff for money lent ", and for merchandises sold and delivered, and promised to pay the plaintiff on a certain day, and died before the day; the plaintiff intending to sue the defendant, his executor, he, in consideration of forbearance for a certain time, promised to pay the debt. The defendant pleaded, that, at the time of the delivery of the goods, the testator was an infant. On demurrer, it was adjudged, that an action would not lie; for the contract of the infant was merely void, and if debt had been brought against him he might have pleaded nil debet. [But now the plea of nil debet is not allowed in any action, R. G. H. T. 4 W. 4.] So where a feme covert, carrying on business as a feme sole trader in the city of London, purchased of the plaintiff articles in the way of her trade, and, after her death, her husband promised to pay for them; it was holden to be a void promise, for want of a consideration, the husband not being liable (6).

t Barber v. Fox, 2 Saund. 136.
u Stone v. Wythipoll, executor, Cro
Eliz. 126.

x Fabian v. Plant, 1 Show. 183.

(5) See also Hunt v. Swaine, 1 Lev. 165. to the same effect See also Crosseing v. Honor, 1 Vern. 180. where a bill was brought by the obligee in a bond against the heir of the obligor, alleging that he' having assets by descent ought to satisfy the bond; the defendant demurred, because the plaintiff had not expresssly alleged, that the heir was bound in the bond; and the demurrer was allowed.

(6) In Lloyd v. Lee. 1 Str. 94. a married woman gave a promissory note as a feme sole, and after her husband's death, in consideration of forbearance, promised to pay it. It was insisted, that though the note was voidable by reason of the coverture, yet by her subsequent promise, when she was of ability to make a pro

The mere relation of landlord and tenant is a sufficient consideration for the tenant's promise to manage a farm in a husband-like mannery; but not to keep a messuage in good and tenantable repair 2. Neglect to cultivate the glebe land in a husband-like manner is not actionable a; there not being ány implied contract between the parson and his successor.

Consideration must move from Plaintiff.-Having endeavoured to explain the nature of the consideration, as far as respects the sufficiency of it, it will be proper in the next place to observe, that the consideration on which the promise of the defendant is founded, must move from the plaintiff. Therefore where the plaintiff declared", that A. being indebted to the plaintiff and defendant in two several sums of money, and B. being indebted to A. in another sum, and there being a communication between the parties, the defendant, in consideration that A. would permit the defendant to sue B. in A.'s name, for the recovery of the sum due from B. to A., promised that he the defendant, would pay A.'s debt to the plaintiff, and alleged that A. permitted the defendant to sue accordingly, and that he recovered; after verdict for the plaintiff, upon non-assumpsit, it was moved in arrest of judgment, that the plaintiff could not maintain this action; and of this opinion were the court, observing, that the plaintiff was a mere stranger to the consideration, having done nothing of trouble to himself, or of benefit to the defendant. So where the plaintiff declared, that J. S. was indebted to the plaintiff, and it was agreed between J. S. and the defendant, that the defendant should pay to the plaintiff the debt due to him from J. S. and that J. S. should make the defendant a title to a house, in consideration whereof the defendant promised to pay the plaintiff the debt due to him from J. S. and then averred that J. S. was always ready to perform his part of the agreement: on demurrer, judgment was given for the defendant, because the plaintiff was a stranger to the consideration.

y Powley v. Walker, 5 T. R. 373.

z Horsefall v. Mather, Holt's N. P. C. 7 Gibbs C. J.

a Bird v. Relph., 4 B. & Ad. 826.

b Bourne v. Mason, 1 Ventr. 6.

c Crow v. Rogers, Str. 592 recognized and acted upon in Price v. Easton, 4 B. & Ad 433.

mise, she had made herself liable, and the forbearance was a new consideration. But Pratt, C. J. held, that the note was absolutely void; and forbearance, where originally there was not any cause of action, was not a consideration to support an assumpsit. He added, that it might be otherwise where the contract was only voidable.