monies 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; in an action against the third person, it was objected that there was no sufficient consideration for his promise; the Court of Common Pleas, however, decided that there was. In another case the plaintiff had obtained judgment against Elizabeth Mackenzie for £57. debt, and 65s, costs; and, in consideration that the plaintiff would forbear to execute a fieri facias on her goods, the defendant undertook to pay him £107. in three days. It was objected, that there was no consideration, 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 £107., 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 £60.; 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 expense, I do not see that the consideration is insufficient for the promise" (c). And where a man who has a judgment debt (c) Smith v. Algor, 1 B. & Ad. 603. takes from his debtor a promissory note for the amount, payable at a certain future time, it must be inferred that he thereby enters into an agreement to suspend his remedy for that time, and if so, that is a good consideration for the giving of the note (d). cause of The proposition thus illustrated will appear still Secus, if no clearer if we consider that the forbearance to pro- action. secute 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. Thus (e), where issue had been joined in a previous action for the recovery of a sum of money from the defendant, who had thereupon 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 subjectmatter 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 (d) Belshaw v. Bush, 29 L. J. (C. P.) 24; Baker v. Walker, 14 M. & W. 465. See Tempson v. Knowles, 7 C. B. 651; Wilson v. Bevan, (e) Wade v. Simeon, 2 C. B. 548. Doubtful claim. the defendant's promise. It 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 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." Although a man has not a clear legal or equitable right, yet if his right or claim is doubtful, and not clearly nugatory or illegal, the abandonment, or, for the same reason, the forbearance of an action brought to enforce it, is a sufficient consideration for a promise (ƒ). Where the plaintiff's goods had been seized by the Excise, and he had afterwards (f) Longridge v. Dorville, 5 B. & A. 117; Stracy v. Bank of England, 6 Bing. 754. entered into an agreement with the Commissioners of Excise, that all proceedings should be terminated, the goods delivered up to him, and a sum of money paid by him to the Commissioners, Parke, B., rests his judgment on the ground that this agreement of compromise honestly made, was for a consideration, and binding (g). The Court of Exchequer has held that the withdrawal of an untrue defence of infancy "in a suit was a sufficient consideration for a promise to accept a smaller sum in satisfaction of a larger" (h). And where trustees under a local statute called on the agent of the owner of certain houses to pay certain expenses chargeable under the statute on the owner; and the agent made known to them who the owner was, and that such owner and not he was liable; but the trustees notwithstanding, really believing that he was liable, threatened to take proceedings against him. Thereupon the agent, although he knew he was not liable, gave his own promissory notes to the trustees, on their agreeing to take less than the amount demanded, and allowing it to be paid by instalments, and this was decided to be a good consideration (i). And à fortiori, where the right is not doubtful, but the amount of the claim only is disputed, an agreement for the settlement of all (g) Atlee v. Backhouse, 3 Rep. 822. M. & W. 633. (h) Cooper v. Parker, 24 L. J. (C. P.) 68; 15 Com. B. (i) Cook v. Wright, 30 L. J. (Q. B.) 321. Trust a consideration. disputes upon the payment of a definite but smaller sum than that claimed, is held to be founded upon sufficient consideration (k). Again it has been decided, that, if I entrust a man to do some act for me, although I am to pay him nothing for performing it, still the mere trust which I repose in him is a consideration for a promise on his part to conduct himself faithfully in the performance of it (1). 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 (m). In this case Bernard had undertaken safely and securely to take up several hogsheads of brandy from one cellar, and safely and securely to lay them down again in another; and he was held bound by that undertaking, and responsible for damage sus (k) Edwards v. Baugh, 11 M. & W. 641; Wilkinson v. Byers, 1 A. & E. 106; Llewellyn v. Llewellyn, 3 D. & L. 318. (1) See Whitehead v. Greetham, 2 Bing. 464; Shillibeer v. Glynn, 2 M. & W. 143; Bainbridge v. Firmstone, ante, (m) 2 Ld. Raym. 909. See Gladwell v. Steggall, 5 Bing. N. C. 733; Blackmore v. Bristol and Exeter Railway, 27 L. J. (Q. B.) 167; 8 E. & B. 1035. |