1 Longridge v. Dorville, 5 B. & Al. 117. See Wade v. Simeon, 2 C. B. 548.
2 Reynolds v. Prosser, Hardr. 71; Davison v. Hanslop, T. Raym. 211 j Quick v. Copleston, 1 Sid. 242.
3 Sage v. Wilcox, 6 Conn. 81.
4 Smith v. Algar, 1 B. & Ad. 603.
6 Giles v. Ackles, 9 Barr, 147. See also McKelvy v. Wilson, 9 Barr, 183. See Lent v. Padelford, 10 Mass. 230.
7 Goring v. Goring, Yelv. 11 (Am. ed. by Metcalf), note 2; 1 Saund. 210, note 1; Treford v. Holmes, Hutt. 108; Parker's Case, Hutt. 56; Porter v. Bille, 1 Freem. 125; 2 Saund. 137, note c.
§ 559. It is not, however, necessary that the forbearance should be in respect of a present and immediate right of action; but it will be sufficient if the promise be to forbear to prosecute a claim when it shall become due. Thus, an agreement by a surety to forbear to institute a suit against the principal, whenever his cause of action shall arise, is a sufficient consideration for a promise of indemnity by a third person, although the surety have no cause of action at the time of the agreement.3
§ 560. Wherever forbearance to sue either operates as a benefit to the one party, or as an injury to the other, it will be sufficient to support a promise made thereupon. As, for instance, a promise by a judgment debtor to pay the debt and costs, in consideration of a stay of execution, is binding, and will support an action.4 So, also, if an obligor, on being called upon to pay his bond, should promise to pay on a future day, assumpsit would lie on this promise.1 Forbearance to levy an execution,2 or to protest a bill of exchange drawn on the party promising,3 or the withdrawing of objections to the probate of a will,4 are sufficient considerations, upon the same ground. So, also, all compromises of doubtful claims, or conflicting rights, and all arrangements made for the purpose of preventing litigation, constitute a sufficient consideration to support a promise, if made bond fide, although they may be founded upon a mistake.5
1 Bac. Abr. Executors and Admr's, M. 2; Rann v. Hughes, 7 T. R. 350, note.
2 21 Am. Jur. p. 272. It has been said, that the executor's promise implies assets; but this would be no reason, since a failure of assets would then be a failure of consideration, and invalidate the promise, which it does not. See Pearson v. Henry, 5 T. R. 8; Rann v. Hughes, 7 T. R. 350, note; Browne's Case, 1 Freem. 409; Reechu. Kennegal, 1 Ves. 126, by Lord Hard-wicke. See ante, Executors and Administrators.
3 Hamaker v. Eberley, 2 Binn. 506; Bidwell v. Catton, Hob. 216; Parker v. Leigh, 2 Stark. 229.
4 The contrary doctrine was held by Lord Mansfield and Ashhurst, J., in an anonymous case in Cowp. 128, upon the ground that it was turning a judgment debt into a debt upon simple contract; but this seems only to be a matter between the parties, and was differently adjudged in Tisdale's Case, Cro. Eliz. 758; and in the case of Tanner v. Hague, 7 T. R. 420. The rule, as stated in the text, seems the better-founded doctrine. See Baker v. Walker, 14 M. & W. 468.
§ 561. It is not only not necessary, however, that forbearance should be unlimited, so as to operate as a total discharge of liability; but it is immaterial whether suit be already commenced or not, or whether the proceedings be at law or in equity.6 The only question is, whether forbearance is either a benefit to the one party, or an injury to the other.
§ 562. In cases where forbearance to sue is the consideration of a promise, the declaration should state distinctly to whom the forbearance was given; so that it may appear whether it were an injury or benefit to either party. For unless the party to whom it is given were actually liable in the suit, or, at least, unless his liability were doubtful, the forbearance would constitute no sufficient consideration.7
1 Foster v. Allanson, 2 T. R. 479; Ashbrooke v. Snape, Cro. Eliz. 240. See, however, Codman v. Jenkins, 14 Mass. 99, in which this doctrine is denied; but the cases before cited sufficiently establish the rule, as stated in the text.
2 Boyle v. Scarborough, Style, 395, 440; Cro. Eliz. 848, 868, 909; Godb. 159, pi. 220; Best v. Jolly, 1 Sid. 38; Love's Case, 1 Salk. 28; Lent v. Padelford, 10 Mass. 230; Jennings v. Hatley, Yelv. 20; Newsom's Case, Clayton, 139.
3 Pinchard v. Fowke, Style, 416.
4 Hill v. Buckminster, 5 Pick. 393.
5 Barlow v. Ocean Ins. Co., 4 Met. 270; Pickering v. Pickering, 2 Beav. 31; Leonard v. Leonard, 2 Ball & Beat. 179, 180; Shotwell v. Murray, 1 Johns. Ch. 516; Lyon v. Richmond, 2 Johns. Ch. 51; 1 Story, Eq. Jur. § 131; Olveson v. Barclay, 2 Penn. 531. See post, § 571.
6 Hamaker v. Eberley, 2 Binn. 506.
7 Jones v. Ashburnham, 4 East, 455; Marshall v. Birkenshaw, 1 Bos. & Pul. N. R. 172. See Lent v. Padelford, 10 Mass. 230, and the cases there cited.