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brought, notwithstanding the brief forbearance of an hour or a day. And the forbearance promised must be sufficient at the time of the promise, and not depend on the promisor's subsequent conduct." For the same reason, forbearance aliquo tempore is insufficient.” “Pro aliquo parvo tempore, viz. some fortnight or thereabouts,” was held sufficient, in the case of Baker v. Jacob.” Forbearance for a reasonable or convenient time is a sufficient consideration. Id certum est quod certum reddi potest, and the court is to decide, when the suit is brought, whether the party has forborne for such a time." Indefinite forbearance was, at first, held to be insufficient;" but it is now well settled that such is a good consideration, that total and absolute, or at least reasonable, forbearance is thereby intended." The distinction between a “little time” or “some time” a “reasonable” or “convenient” time, or an indefinite forbearance, though somewhat subtle, is sufficiently intelligible. A consideration must be sufficient at time of the contract made, and must not depend on subsequent events.” Forbearance for a “little time,” &c. is wholly uncertain, and the courts cannot decide what is a little time, within the meaning of the parties. And though a reasonable, or a long time may be afterwards given to the promisor, yet it does not render the original consideration sufficient. Whereas, general forbearance, or for a convenient or reasonable time, is a subject of judicial understanding, and must import, at the time of the contract, such a forbearance as the courts will hold to be sufficient. In declaring on a promise made upon such consideration, the plaintiff must allege the time of forbearance actually given, and he must prove it; and if it be judged reasonable and sufficient, the action will be sustained." Forbearance is not a good consideration to support a promise, unless there is a good cause of action. It must be a forbearance of what might be legally enforced. Therefore, where an obligee released one of the joint obligors, and the other promised payment, in consideration of forbearance, it was held to be nudum pactum ; for a release of one is a discharge of both.” So of a promise by an heir to pay the bond of his ancestor, when he is not expressly bound in the bond;’ and of a widow to pay a note given by her while under coverture, or her husband's debts; “and of a husband to pay for goods bought by his wife as a feme sole trader, she being dead;" or, after her death, to pay a debt contracted by her before marriage. And this holds, as to debts, &c. due from the wife, as executrix or administratrix." So of a promise in consideration of a discharge from a wrongful arrest.' Nor is forbearance to sue a good consideration for a promise, where it does not appear that

* 1 Rol. Ab. 23; Hetl. 8, Marshe's case; 1 Sid. 45, Tricket v. Mandlee; Cro. Eliz. 19, Lutwich v. Hussey; 4 Wash. C. C. 148; 1 Pensylv. 385. CoxTRA, Gouldsb. 48, Whorwood v. Gybbons; 1 Leon. 61, Gill v. Harewood; Cro. Car. 241, Cooks v. Dowze ; Hetl. 62, Palmer's case.

* 1 Sid. 45; Cro. Car. 438; 1 Selw. Nisi Prius (1st ed.) 43.

* 1 Bulst. 41.

* 3 Bulst. 207; Moore, 853; 1 Sid. 294; 1 Lev. 188; 1 Sid. 45; 2 M. & S. 50, by lord Ellenborough.

* Cro. Eliz. 455, Philips v. Sackford.

* Latch, 151, Cowlin v. Cook; S. C. Noy, 83; 1 Freem. 66, Anon.; Cro. Jac. 897, Therne v. Fuller; Poph. 183, Beven v. Cowling; Cro. Jac. 683, Mapes v. Sidney; S.C. Hut. 46; 2 Binney, 506, Hamaker v. Eberly; Style, 459, Maynell v. Mackallye; Hardr. 5, Barnehurst v. Cabbot; 3 Watts, 213, Clark v. Russell.

* By Dodderidge, J., Poph. 183.

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there was any person, in rerum natura, liable to be sued." There are cases, however, in which forbearance, without mentioning the person to be forborne, is held to be forbearance of every body; and, in these cases, if there be any person liable to pay, the promise will be binding, though the defendant be not himself liable.”

An agreement by a surety to forbear a suit against the principal, after he shall have paid the principal's debt, is a good consideration for a promise of reimbursement by a third person, though the surety had no cause of action at the time of the agreement.” “Forbearance to sue after the cause of action attached would be as great an injury to the plaintiff, as the immediate forbearance to sue a cause of action existing at the time of the promise.” “ This decision is within the principle of the other cases, and not an exception to it. It stands on the same ground with other prospective contracts. If there had been no cause of action against the principal, on the surety’s paying the debt, or if the surety had himself been fully indemnified, the decision would have been different.

Surceasing a suit instituted to try a doubtful right is a good consideration (as has been before stated) for a promise to pay a stipulated sum."


It is frequently asserted in the books, that a moral obligation is a sufficient consideration for an express promise, though not for an implied one." The terms “moral obliga-.

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tion,” however, are not to be understood in their broad ethical sense; but merely to denote those duties which would be enforced at law, through the medium of an implied promise, if it were not for some positive rule, which, with a view to general benefit, exempts the party, in the particular instance, from legal liability. A promise to pay a debt barred by the statute of limitations, or discharged under a bankrupt law, falls into this class of cases.' So of an adult's promise to pay a debt contracted during his infancy, and of a borrower's promise to pay principal and lawful interest of a sum loaned to him on a usurious contract;” and of a widow to pay a debt or fulfil other contracts made during coverture.” So of a promise by the drawer of a bill of exchange, or the indorser of a bill or note, to pay it, though he has not received seasonable notice of the default of other parties." So of a promise by a lessor to pay for repairs made by a lessee, according to agreement, but not inserted in the lease;" and a promise to refund money received in part payment of a debt—the evidence being lost, and the whole original debt having, in consequence of the loss, been recovered by suit at law." In the foregoing cases there was a good and sufficient original consideration for a promise—a contract on which an action might have been supported, if there had not been a rule of law, founded on policy, (but wholly unconnected with the doctrine of consideration) which entitled the promisor to exemption from legal liability. In most, if not all these cases, the rule, which entitled the party to exemption, was established for his benefit. Such benefit, or exemption, he may waive; and he does waive it, by an express promise to pay. The consideration of such promise is the original transaction, which was beneficial to him, or detrimental to the other party.' These cases give no sanction to the notion that an express promise is of any binding validity, where there was nothing in the original engagement which the law regards as a legal consideration. The case of Watson v. Turner” has often been cited to prove that a moral obligation, in its extended sense, is a sufficient consideration for an express promise. That was an action against the overseers of a parish for supplies furnished to a pauper, settled in the parish, and boarding out of it, under an agreement made by the overseers and the plaintiff, and a promise by them, after the supplies were furnished, to pay the bill. “For,” says the book, “overseers are under moral obligation to support the poor.” In Atkins v. Banwell,” in a suit against overseers for supplies to a pauper in a parish where he was not settled, it was held, that as no express promise had been made, the action could not be sustained; and lord Ellenborough said that the promise, in the former case, made all the difference; for a moral obligation was sufficient to support an express, but not an implied, promise. The true ground, however, of the decision, in Watson v. Turner, was the legal obligation of the defendants; for it is settled law, that overseers are legally bound to supply paupers casually in the parish, and

* Cowp. 544; 2 H. B. 116; 8 Mass. R. 127; 7 Johns. 36; 4 Verm. 144; 1 Cow. 249.

* 2 Taunt. 184; 19 Johns. 147. * 5 Taunt. 36.

* 7 East, 231, & note; 6 East, 16, note; I2 Mass. R. 52; Bayley on Bills, (1st Am. ed.) 188, et seq.

* 2 Bing. 459, Seago v. Deane.

* 14 Johns. 468. Where the party suffered judgment by default, in such case, he was held entitled to recover back the amount he had previously paid, in an action on an implied promise. 16 Mass. R. 306. Contra, 1 N. Hamp. R. 33.

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