Ex parte Banner, 17 Ch. D. 480, (C. A. 1881) did not really involve the question because the claim forborne in that case was not simply unfounded, but known by the claimant to be so. But the language of Brett, L.J. (at p. 490). is noticeable. " Whenever a similar case arises, I think it will have to be carefully considered whether the decision in Callisher v. Bischoffsheim can be supported, and whether, in order to support a compromise of an action, it is not necessary to show, not only that the plaintiff believed that he had a good cause of action, but that the circumstances did in fact raise some doubt whether there was or was not a good cause of action, and I venture to doubt whether, if there was clearly and obviously no cause of action, the mere belief of the parties that there was would support the compromise. It is true that the subsequent case of Ockford v. Barelli (if that be also held good law) is an authority against this view, because in it there could not possibly be a doubt that there was of cause of action. But I take it that Ockford v. Barelli was decided upon the authority of Callisher v. Bischoffsheim."

In Miles v. New Zealand, & c. Co., 32 Ch. D. 2C6, (C. A. 1886) the point was again somewhat discussed, although the decision of the case went on other grounds. Brett's remarks in Ex parte Banner, quoted above, were referred to and expressly disapproved, and Callisher v. Bischoffsheim and Ockford v. Barelli were cited as laying down the correct rule. Cotton, L. J., said (at p. 283): " Now what I understand the law to be is this, that if there is in fact a serious claim, honestly made, the abandonment of the claim is a good ' consideration ' for a contract." " By ' honest claim,' 1 think is meant this, that a claim is honest if the claimant does not know that- his claim is unsubstantial, or if he does not know facts, to his knowledge unknown to the other party, which show that his claim is a bad one."

In this country the rule established by the late English decisions, that forbearance of an "honest claim" as defined by Cotton, L. J., is a good consideration regardless of the actual validity of the claim, is followed, or a somewhat similar rule laid down in entire discharge; any delay which is real and not merely colorable, is enough. (x) Nor is it material whether the proceedings to be forborne have been commenced or not. (y) Nor need the agreement to a delay be for a time certain; for it may be for a reasonable time only, and yet be a sufficient consideration for a promise. (z)1 But in declaring on a promise made on such

(x) Sage v. Wilcox, 6 Conn. 81. Here the delay was one year. Baker v. Jacob, 1 Bulst. 41. Here the delay was a fortnight, or thereabouts. See also ante, note (u).

(y) Wade v. Simeon, 2 C. B. 548; Miles v. New Zealand, etc. Co., 32 Ch. D. 266; Hamaker v. Eberley, 2 Binn. 506.

(z) Lonsdale v. Brown, 4 Wash. C. C. 148; Sidwell v. Evans, 1 Penn. St. 385;

Union Bank v. Geary, 5 Pet. 99; Morris v. Munroe, 30 Ga. 630; Grandin v. Grandin, a consideration, the plaintiff must allege and prove the actual time of forbearance, and if this be judged by the court to be reasonable, the action will be sustained; (a) but where the stay of action is wholly uncertain, or such as can be of no benefit to the debtor or detriment to the creditor, it is not enough.(b)

49 N. J. L. 508; Zoebisch v. Van Minden, 120 N. Y. 406; Bellows v. Sowles, 55 Vt. 391; Hewett v. Currier, 63 Wis. 386; Saxton v. McNair, 71 Wis. 459. And see Prout v. Pittsfield Fire District, 154 Mass. 450; Bailey v. King, 79 Mich. 568; Clark v. Turnbull. 47 N. J. L. 265; Wildman v. St. Johusbury, etc. R. R. Co., 25 At. Rep. 896 (Vt. 1892).

On the other hand it is held that such forbearance will not constitute a good consideration unless the claim forborne was valid, or at least sufficiently doubtful in fact or law to render a claim reasonable, in Stewart v. Bradford, 26 Ala. 410; Mulholland v. Bartlett, 74 Ill. 58; Bates v. Sandv, 27 Ill. App. 552; (but see Parker v. Enslow, 102 Ill. 272); U. S. Mortgage Co. v. Henderson, 111 Ind. 24; (but see Moon v. Martin, 122 Ind. 211); Tucker v. Ronk, 43 Ia. 80; (but see Richardson, etc. Co. v. Hampton, 70 Ia. 573); Cline v. Templeton, 78 Ky. 550; Schroeder v. Fink, 60 Md. 436; Palfrey v. Portland, etc. R. R. Co., 4 Allen, 55; (see also Dunham v. Johnson, 135 Mass. 310); Demars v. Musser-Sauntry, etc. Co., 37 Minn. 418; Gunning v. Royal, 59 Miss. 45; Long v. Towl, 42 Mo. 545; Kidder v. Blake, 45 N. H. 530; (but see" Pitkin v. Noyes, 48 N. H. 294); Davisson v. Ford, 23 W. Va. 617. See also Richardson v. Comstock, 21 Ark. 69; Swem v. Green, 9 Col. 358; Fleming v. Ramsey, 46 Pa. 252; Warren v. Williamson, 8 Baxt. 427; Smith v. Penn, 22 Gratt. 402.

In all jurisdictions it would be admitted that forbearance of a claim is no consideration if the claimant knows his claim to be unfounded or conceals material facts relating thereto. Ex parte Banner, 17 Ch. D. 480; McKinley v. Watkins, 13 Ill. 140; Headley v. Hackley, 50 Mich. 43; Feeter v. Weber, 78 N. Y. 334: Ormsbee v. Howe, 54 Vt. 182. But see Moon v. Martin, 122 Ind. 211.

The English rule has the practical advantage that it puts an end to litigation. Under any other rule it can never be certain that forbearance or promise of forbearance is a valid consideration until suit is brought upon the promise made in exchange for it, for the final test under any other rule is whether the court thinks the claim forborne valid, reasonable, or doubtful. Theoretically also it is believed that the English rule is the true one; that the law should determine the validity of the consideration from the standpoint of the parties themselves in this class of cases, as it certainly does in others. Thus a contract of marine insurance " lost or not lost" is binding, though the vessel be lost at the time, infra, II. 486. So a wager as to an event which has already happened, though contrary to public policy, is not without consideration. March v. Pigot, 5 Burr. 2802.