4 King v. Upton, 4 Greenl. 387; Elting v. Vanderlyn, 4 Johns. 237; Allen v. Pryor, 3 A. K. Marsh. 305. See Morton v. Burn, 7 Ad. & El. 19; Willatts v: Kennedy, 8 Bing. 5.
5 Payne v. Wilson, 7 B. & C. 423; Elting v. Vanderlyn, 4 Johns. 237.
6 Clark v. Russel, 3 Watts, 213; Sidwell v. Evans, 1 Penn. 385; Hume v. Hinton, Style, 304; Elting v. Vanderlyn, 4 Johns. 237; Herrings. Dorell, 8 Dowl. P. C. 604. 7 Mecorney v. Stanley, 8 Cush. 88.
§ 555. Where a contract is made of such a nature as to imply a promise to forbear bringing a suit, it will be equally binding as if the promise were express. If, therefore, a person having a judgment debt take from his debtor a promissory note for the amount payable at a future time certain, .the agreement to suspend his remedy for that period is necessarily implied in the transaction, and constitutes a good consideration for the giving of a note.2
§ 556. An agreement to forbear to sue or enforce a claim, which is utterly unfounded, and upon which there is no good cause of action, is void for want of consideration.3 A forbearance to sue a claim, which is made in good faith, although it prove to be entirely groundless, is a good consideration for a promise.4 It might be different if the plaintiff knew he had no claim.5 Thus, if one of two joint obligors on a bond be released by the obligee, and the other promise afterwards to pay it, in consideration of forbearance on the part of the obligee, the promise would be void for want of consideration, because the release of one obligor is a release of the other.6
1 Carter v. Moses, 39 III. 539 (1864).
2 Baker v. Walker, 14 M. & W. 468. See post. A promise to extend the time of payment of a debt already due is not binding unless made upon some new consideration. A part payment of the debt, or interest in arrear, or to pay future interest promptly, the contract being already on interest, is not sufficient. Parmelee v. Thompson, 45 N. Y. 58 (1871); Kellogg v. Olmsted, 25 N. Y. 189.
3 Jones v. Ashburnham, 4 East, 455; Smith v. Algar, 1 B. & Ad. 604; Com. Dig. Action on the Case, Assumpsit, F. 8; Gould v. Armstrong, 2 Hall, 266; Cabot v. Haskins, 3 Pick. 83; Warder v. Tucker, 7 Mass. 449; Freeman v. Boynton, 7 Mass. 483; May v. Coffin, 4 Mass. 347; Atkinson v. Settree, Willes, 482; Randall v. Harvey, Palm. 394; Rosyer v. Langdale, Style, 248; Nelson v. Serle, 4 M. & W. 795; Slack v. Moss, Dudley (Ga.), 161; Wade v. Simeon, 2 C. B. 548; N. H. Bank v. Colcord, 15 N. H. 119; Martin v. Black, 20 Ala. 309; Lowe v. Weatherley, 4 Dev. & Batt. 212; Silvernail v. Cole, 12 Barb. 685; Llewellyn v. Llewellyn, 3 Dowl. & L. 318; Edwards v. Baugh, 11 M. & W. 641; White v. Bluett, 23 Law J. (n. 8.) Exch. 36. See Hennessey v. Hill, 52 111. 281 (1869).
4 Callisherr. Bischoffsheim, LawR. 5 Q. B. 449 (1870); Cook v. Wright, 1 B. & S. 559. And see Llewellyn v. Llewellyn, 3 Dowl. & L. 318.
5 Wade v. Simeon, 2 C. B 548.
And it has been held that an agreement not to bring forward a certain existing set-off, against the price of work being performed, was not binding, though made in consideration of a deduction from the price of the work;1 but a contrary doctrine has also been maintained.2 So, also, a promise by an heir to pay the bond of his ancestor, in consideration of forbearance to sue him thereupon, is void, unless he be expressly bound in the bond.3 So, also, forbearance to sue a note, given by a feme covert, without her husband's consent, during her coverture, or a bond as surety given by an infant, is no consideration to support a new promise to pay,4 because no liability ever attached to either party. So, also, a promise by an heir, in consideration of forbearance to prosecute a suit in chancery against him, to which he could not be made a party, will not support an action.5 Yet if the defendant would avail himself of the insufficiency of such a consideration, in a suit upon his promise, he must show conclusively that the claim could not have been enforced, either in law or in equity.6
§ 557. Again, it must appear that there was some party who could be sued, for otherwise forbearance would be a mere form.7 But if it appear that the claim was only doubtful, the consideration would be sufficient.8 Thus, where a ship, having on board a pilot, as required by law, ran afoul of another vessel, and proceedings were instituted by the owners of the latter to compel the owners of the former to make good the damages; and the same vessel was detained until bail was given; and, pending such proceedings, the agent of the owners of the damaging vessel agree to indemnify the owners of the damaged vessel, and to pay a stipulated sum as damages; it was held, that, there being contradictory decisions as to whether ship-owners were liable for an injury done by their ship, while under the control of a pilot, as required by law, there was a sufficient consideration to support the promise.1
1 Lovett v. King, 16 Ind. 464 (1861); M'Gillivray v. Simson, 2 C. & P. 320; s. c. 9 Dowl. & Ryl. 35.
2 Louden v. Tiffany, 5 Watts & S. 367.
3 Barber v. Fox, 2 Saund. 136; s. c. 1 Vent. 159.
4 Loyd v. Lee, 1 Str. 94; Goodwin v. Willoughby, Latch, 142; s. c. Poph. 177; ante, § 101, 165, 171.
5 Tooley v. Windham, Cro. Eliz. 206.
6 Gould v. Armstrong, 2 Hall, 266.
7 Jones v. Ashburnham, 4 East, 455; Nelson v. Serle, 4 M. & W. 795.
8 Richardson v. Mellish, 2 Bing. 229; s. c. 9 Moore, 435; Longridge v. Dorville, 5 B. & Al. 117; Wilbur v. Crane, 13 Pick. 284; Union Bank of Georgetown v. Geary, 5 Peters, 114.
§ 558. If, however, the claim be well grounded, forbearance to sue it is a sufficient consideration to support the promise of a third person, as well as that of the party liable to the suit, if the bringing of the suit would occasion any inconvenience or injury to such third person.2 An agreement by the holder of a promissory note to forbear to sue the maker for a certain and reasonable time is a sufficient consideration for a guaranty of payment by a third person.3 So, also, a forbearance by A. at the request of B. to enforce a fieri facias, against the goods of a third person, for £60, was held to be a good consideration for B.'s promise to pay A. .£107 in seven days.4 So, where forbearance is given by the assignee of a debt who could not have sued in his own name, the consideration is sufficient.5 So, also, a promise, to pay the debt of another if the creditor would stay an execution therefor for a certain time, is a sufficient consideration, if the execution be stayed until after the agreed day.6 So, also, if an executor or administrator, in consideration of a forbearance by a creditor of the testator to sue, promise to pay his debt, he will be personally bound, although he have no assets,7 upon the ground that such forbearance is a matter of personal benefit. But if no advantage or benefit accrue to the administrator in his individual capacity, his promise will not render him liable beyond his assets; for a promise is only coextensive with the consideration, unless some particular consideration of fact warrant its extension, so as to create an individual liability.1 The benefit accruing personally to the administrator arises from the fact that the creditor may bring a suit against him immediately; and if there be no present assets, he may have judgment to recover quando bona acciderint.2