parish during the progress of the suit; upon which the defendant, a landowner in the parish, undertook to indemnify him from all costs, if he would suffer the defendant to defend the suit in his, the plaintiff's, name; and it was held, that there was a sufficient consideration for the defendant's promise (").

In an action of debt for fish due for tolls, the plaintiff claimed a right, under a custom, to take the second best fish out of every boat-load of fish, by way of toll, from fishermen frequenting a certain cove and landing fish therein. It was proved that the plaintiff and his ancestor had immemorially furnished and maintained a capstan and rope, for the use of the fishermen, and that in stormy weather boats could not be drawn up from the sea with safety to the crews, without them; that the spot upon which the capstan stood, belonged to the plaintiff, but the rest of the cove over which the boats were drawn was the property of a third person. It was held that the keeping the capstan and rope in good order and ready for use, was a good consideration for the toll, whether the capstan were used or not (o). And the forbearance by the plaintiff at the defendant's request to enforce a fieri facias against the goods of a third person for £60, is a valid consideration for the defendant's promise to pay the plaintiff £107 in seven days (p).

So it is a sufficient consideration for a promise, that the plaintiff undertook to endeavour to perform any act, at the defendant's request, as to procure the lease of a house, or a note from a debtor, &c. (q); for this must be an inconvenience to the plaintiff, and might eventually benefit the defendant. But in such a case a bona fide exertion on the part of the plaintiff, to attain the proposed object for the defendant, would be necessary.

The merely giving leave of absence to a soldier at the instance of a third person, has been held to be a good consideration for a promise by the latter to the captain who gave such permission, that the soldier should return in ten days, or that the promiser would pay the captain £20 (r).

(n) Adams v. Dansey, 6 Bing. 506; 4 M. & P. 245, S. C.

(0) The Earl of Falmouth v. George, 5 Bing. 286; 2 M. & P. 457, S. C. (p) Smith v. Alyar, 1 B. & Ad. 603; post, 32, and note (k).

(q) Gurnons v. Hodges, Yelv. 11; Lumpleigh v. Braithwait, Hobart, 105. See Com. Dig., Action upon the Case

upon Assumpsit, (B), (b. 5).

(r) Taylor v. Jones, 1 Lord Raym. 312. A mere request to a sheriff not to execute a writ of fieri facias at the suit of the promiser, held a sufficient consideration, after judgment by default, and error brought, Pullin v. Stokes, 2 H. Bl. 312.

But we shall presently see that a holding, or surrender of a demise, strictly at will, is not in general a sufficient consideration for a promise (8).

Forbearance. An agreement to forbear for a certain or reasonable time, to institute or prosecute, legal or equitable proceedings, for a well-founded legal or equitable demand, is also a sufficient consideration for the promise of the debtor, or a third person, to pay the debt, or do any other act (t). By such forbearance the creditor is delayed, and the debtor is, or may be, benefited; so that there concur both the ordinary grounds upon which a sufficient consideration may be rested.

In order to render the agreement to forbear, and the forbearance of a claim, a sufficient consideration, it is essential that such claim should be sustainable at law as in equity: the consideration fails if it appear that the demand was utterly without foundation (u). Therefore, the promise of an heir to pay his ancestor's bond, in consideration of forbearance to sue him thereon, is not binding if the bond did not expressly name, and consequently did not bind, the heir of the obligor (r): but it seems that if the heir be named in the bond, he may be liable in such case, although he have not assets by descent (y). So the promise of an heir, in consideration of forbearance of a suit in chancery, to which he was not liable, will not support an assumpsit (z). Where the plaintiff declared that A., since deceased, was indebted to him in a certain sum, and that after A.'s death, in consideration of the promises, and that the plaintiff would, at the plaintiff's request. forbear and give day of payment of the debt, (not stating to whom he was to forbear,) the defendant promised, &c., the Court held, upon demurrer, that the declaration was defective, upon the ground that it was not shewn that there was any personal representative or other person who was liable to the debt; and consequently, that it did not appear that the plaintiff could have sustained any detri

(s) Post. 39.

As to

(1) See 1 Rol. Ab. 24, pl. 33; Com. Dig. Action upon the Case upon Assumpsit, (F)8, Assumpsit, (B)1; 2 Saund. 136; 3 Chit. Com. L. 66, 67. the mode of laying the consideration and averring forbearance, see 2 Chit. Pl. 5th ed., 252 à; 7 B. & C. 423; 1 M. & Ry. 708, S. C; 2 M. & P. 487, 482; 5 Bing. 295, S. C.

(u) Sce Com. Dig. Action upon the

ment by suspending proceedings (a). And in assumpsit on an agreement to pay money in consideration that the plaintiff would discharge a third person from custody, the Court seemed to be of opinion, that if the latter was illegally in custody, the promise was void; but they considered that it should be intended, after verdict, that the arrest was legal; the declaration averring that it took place on process duly issued out of an inferior court (b). A receiver appointed by the Court of Chancery, brought an action for a debt due from E. F. to A. B. and C. (whose estate he was empowered to collect), and averred that E. F. being liable to him (the plaintiff) as receiver, the defendant promised to pay him, in consideration that he would give E. F. time for payment, and in case of E. F.'s default. It was held on a motion to arrest the judgment, that the declaration shewed a sufficient consideration for the defendant's promise; for, as receiver, the defendant had authority to forbear proceedings for the debt, and to enter into the contract (c).

It is not necessary that the forbearance should extend to an entire discharge of proceedings; nor is it material whether the proceedings to be forborne, have been commenced or not, or are at law or in equity (d). A forbearance, or suspension, of proceedings for a limited period, with power to continue them if the debt be not then paid, is sufficient. And where a declaration stated the consideration to be an agreement for forbearance (not shewing for what time), and there was an averment that the plaintiff forbore for a long time, it was held after verdict upon a motion in arrest of judgment, that the declaration was sufficient; for it shall be intended that the plaintiff agreed to forbear for a convenient or reasonable time, and that is a sufficient consideration (e). And it is a sufficient consideration for a promise, that the plaintiff holding a bill of sale against the goods of a third person for a debt, agreed

(a) Jones v. Ashburnham, 4 East, 455. It is observable that this case was upon demurrer. The Court distinguished it from some cases which were cited by the counsel, and in which declarations had been supported after verdict, although they did not clearly point out a ground of liability to the debt, on the part of any particular person; but it might be presumed after verdict, that the plaintiff had proved at the trial that there was somebody who could have been sued, in support of

the averment, that the plaintiff did forbear, and see Infra, notes (b), (c); Marshall v. Birkenshaw, 1 New R. 132,

(b) Atkinson v. Settree, Willes R. 482; see Lloyd v. Lee, Stra. 94; 2 Saund, 137 c, note, and note b, 5th ed.

(c) Willatts v. Kennedy, 8 Bing. 5.

(d) Bidwell v. Catton, Hob. 216; 2nd res.; Poolly v. Gilberd, 2 Bulstr. 41; Purker v. Leigh, 2 Stark. R. 229,

230.

(e) Mapes v. Sidney, Cro. Jac. 683; 1 Rol. Ab. 24, pl. 23.

to give up the goods, and forbear to sell them (f). But it seems that a promise in consideration of the stay of an action" for a little time (g)," or "for some time," is not binding (h); either on the ground of uncertainty, or of the absence of detriment to the creditor, and advantage to the debtor.

It is not material that the party making the promise, in consideration of forbearance to a third person, has no interest in the transaction, and cannot be benefited by the delay. If a person employed by the administrator of a deceased debtor, to wind up the concerns of the deceased's business, give an undertaking to a creditor of the deceased to furnish money to meet an acceptance, which such creditor has given, in furtherance of an accommodation arrangement for delaying payment, in the hope that funds may be forthcoming, he is liable on such undertaking, though he were merely a clerk, and had no interest in the goods sold by the creditor, and had not received any funds applicable to the discharge of the debt (i). And it has been recently decided, that the forbearance by the plaintiff at the defendant's request, to enforce a fieri facias against the goods of a third person for £60, is a valid consideration for the defendant's promise to pay the plaintiff 1077. in seven days. The Chief Justice observed, "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 (k)."

INTRUSTING A PARTY WITH PROPERTY. The intrusting a person with property is a consideration, in itself, for his promise that, if he act upon the trust, he will faithfully discharge it. Therefore, though an action will not lie for not doing a thing where there is no such consideration, as reward, &c. to uphold a promise to do it; yet where there is a delivery of goods and chattels or monies to a person who undertakes to do something respecting them, even without any reward for his trouble, an action will lie

(f) Barrell v. Trussell, 4 Taunt. 117. (g) 1 Rol. Ab. 23, pl. 5; Baker v. Jacob, 1 Bulstr. 41; Seckford's Case, Cro. Eliz. 455; Tolhurst v. Brickinden, Cro. Jac. 250. In Baker v. Jacob, the declaration laid the consideration to be a forbearance "for some little time, to wit a fortnight, or thereabouts," and held good after the verdict, in respect of the videlicet.

on this bailment, if there be a neglect in the management by which the goods are spoiled, &c. The obligation in this case arises ex mandato, and is called in Bracton, Mandatum. Vinnius (1), in his "Commentary on Justinian," defines mandatum to be contractus quo aliquid gratuito gerendum committitur et accipitur. This undertaking obliges the undertaker, to a diligent management. Bracton (m) says, contrahitur etiam obligatio non solum scripto et verbis sed et consensu sicut in contractibus bonæ fidei; ut in emptionibus, venditionibus, locationibus, conductionibus, societatibus et mandatis.

This distinction is clearly taken in the Year Book, 11 H. 4, 33, where an action was brought against a carpenter, for that he had undertaken to build the plaintiff a house within such a time, and had not done it; and it was adjudged the action would not lie, no consideration being laid. But there the question is put to the court; what if he had built the house unskilfully? And it was agreed, that in such case the action would have lain (~).

In an action of assumpsit the declaration was, that whereas the plaintiff being obliged to J. S. in 407., for the payment of 201. and the bond being forfeited, delivered 101. to the defendant, to the intent that he should pay it to J. S. in part of payment without delay; in consideration whereof, the defendant assumed, &c. It was assigned for breach, that defendant had not paid the money; whereupon J. S. had sued the plaintiff' for the debt and on non assumpsit pleaded there was a verdict for the plaintiff. And it was moved in arrest of judgment, that here was not any consideration, because it was not alleged that the plaintiff delivered the money to the defendant at his request; and the acceptance of it, to deliver to another without delay, could not be any benefit to the defendant to charge him with this promise. Sed non allocatur; for being that he accepted this money to deliver it, it was a good consideration to charge him. And judgment was given for the plaintiff, which was affirmed on writ of error (0).

This principle was elaborately considered and acted upon by Holt, C. J., and all the judges, in the celebrated case of Coggs and Barnard (p); which arose upon an action upon the case,

(4) Lib. 3, tit. 27, 684.

(m) Bract., lib. 3, 100.

(n) Vide 19 Hen. 6, 49; Bro. tit. Action sur le Case, 24; 48 Ed. 3, 6.

(0) Wheatley v. Low, Cro. Jac.

668.

(p) Lord Raym. 909; Com. 133; 1 Salk. 26; 3 id. 11, S. C.

D