An agreement to forbear for a time, proceedings at law or in equity, to enforce a well-founded claim, is a valid consideration for a promise. (u) But this consideration fails if it be shown * that the claim is wholly and certainly unsustainable at law or in equity;1 but mere proof that it

(u) See 1 Roll. Abr. 24, pl. 33; Com. Dig. Action upon the Case upon Assumpsit (B. 1); 3 Chitty, Com. L. 66, 67. - In Atkinson v. Bayntum, 1 Bing. N. C. 444, one M. being in custody pursuant to a warrant of attorney, by which he had agreed that execution should issue from time to time for certain instalments of a mortgage debt, the defendant, in consideration that the plaintiff would discharge M. out of custody, undertook that he should, if necessary, be forthcoming for a second execution; it was held, that the defendant's contract was valid. - As to the mode of declaring in such case, see Wil-lats v. Kennedy, 8 Bing. 5; Moston v. Burn, 7 A. & E. 19. In this country the same general principles are recognized. Thus, if one promise to pay the debt of another, in consideration that the creditor will " forbear and give further time for the payment" of the debt; this is a sufficient consideration, though no particular time of forbearance be stipulated; the creditor averring that he did thereupon forbear, from such a day till such a day. King v. Upton, 4 Greenl. 387. See also

Elting v. Vanderlyn, 4 Johns. 237; Muir-head v. Kirkpatrick, 21 Penn. St. 237.- So an agreement by a surety to forbear a suit against his principal, after he shall have paid the debt of the principal, is a good consideration to support a promise, although at the time of the agreement the surety had no cause of action against the principal. Hamaker v. Eberley, 2 Binn. 506. - So a promise to forbear, for six months, to sue a third person, on a just cause of action, is a valid and sufficient consideration for a promissory note. And in a suit on such note by the payee against the maker, the burden of proof is not on the payee, to show that he has forborne according to his promise, but on the maker, to show that he has not. Jennison v. Stafford, 1 Cush. 168. See also Giles v. Ackles, 9 Barr, 147; Silvis v. Ely, 3 W. & S. 420; Watson v. Randall, 20 Wend. 201; Ford v. Rehman, Wright, 434; Oilman v. Kibler, 5 Humph. 19; Colgin v. Henley, 6 Leigh, 85; Rood v. Jones, 1 Doug. (Mich.) 188; Martin v. Black's Ex'rs, 20 Ala. 309; McKinley v. Watkins, 13 Ill. 140.

1 Whether giving up or forbearing to sue upon a claim which is without foundation can ever constitute a good consideration is a question upon which there is great conflict of authority.

In England the question was not settled until very recently, but it had been supposed that forbearing or promising to forbear suit would not be a sufficient consideration to support a promise unless the claim forborne was well founded or at least doubtful in law or fact. See Banes's Case, 9 Rep. 93 b; Barber v. Fox, 2 Wms. Saund. 136; Loyd v. Lee, 1 Strange, 94; Jones v. Ashburnham, 4 East, 455; Longridge v. Dorville, 5 B. & Ald. 117; Payne v. Wilson, 7 B. & C. 423; Smith v. Algar, 1 B. & Ad. 603; Morton v. Burn, 7 A. & E. 19; Edwards v. Baugh, 11 M. & W. 641; Llewellyn v. Llewellyn, 3 Dowl. & L. 318; Wade v. Simeon, 2 C. B. 548; Smyth v. Holmes, 10 Jurist, 862; Henderson v. Stobart, 5 Ex. 99; Crowther v. Farrar, 15 Q. B. 677; Cook v. Wright, 1 B. & S. 559. In 1870, however, the point was squarely decided in the case of Callisher v. Bischoffsheim, L. R. 5 Q. B. 449. The declaration set forth that the plaintiff had alleged that certain moneys were due him from the government of Honduras and is doubtful will not invalidate *the consideration. (w) Nor is it necessary that the forbearance should extend to an other persons, and had threatened and was about to take legal proceedings against them to enforce payment, and that in consideration that the plaintiff would forbear to take such proceedings the defendant promised to deliver to the plaintiff certain securities, that all conditions had happened, etc., yet the defendant had not delivered the securities. The plea was as follows: "That at the time of making the alleged agreement, no moneys were due and owing to the plaintiff from the government and other persons." To this there was a demurrer. The court gave judgment for the plaintiff, Cockburn, C. J., briefly expressing the grounds of the decision thus: " If he (the plaintiff) bona fide believes he has a fair chance of success, he has a reasonable ground for suing, and his forbearance to sue will constitute a good consideration," and this although " there was in fact no claim by the plaintiff against the Honduras government which could be prosecuted by legal proceedings to a successful issue."

(w) Longrulge v. Dorville, 5 B. & Ald. 117; Zane v. Zane, 6 Munf. 406; Blake v.

Peek, 11 Vt. 483; Truett v. Chaplain, 4

Hawks, 178.

Only a year before Callisher v. Bischoffsheim was decided, however, Lord Romilly, M. R., had reached an opposite conclusion in Graham v. Johnson', L. R. 8 Eq. 36 There the defendant held a bond executed by the plaintiff which the latter was entitled to have cancelled as being voluntary. At the plaintiff's request the defendant forbore suit on the bond. the plaintiff agreeing to pay from an expected inheritance. It was held nevertheless the plaintiff was entitled to a decree of cancellation, and that the promise to pay the defendant was not binding, the court saying, " Now in all the cases in which forbearance to sue has been held to be a sufficient consideration to support a promise to pay, the person forbearing to sue has had a right to sue."

In Ockford v. Barelli, 25 L. T. n. s. 504, (1871) the Court of Exchequer followed Callisher v. Bischoffsheim. The plaintiff there, supposing herself the widow of J. B., claimed on his decease one third of his property. In consideration of her forbearing to make this claim, J. B.'s children agreed to pay over one third of the value of the estate. It turned out that the first wife of J. B., whom the plaintiff had supposed to be dead at the time of her own marriage, was in fact alive, and that therefore she was legally entitled to no part of J. B.'s estate. It was held nevertheless that the children's agreement was binding.