March, 1801, at Shrewsbury aforesaid, in the county aforesaid, in consideration of the premises, and also in consideration that the said Evan, at the special instance and request of the said Nancy, would forbear and give day of payment of the said sum of 581. 7s. 2d. as herein after in this count mentioned, she the said Nancy, by a certain note, or memorandum, in writing, then and there made and signed by her, according to the form of the statute in such case made and provided, undertook, and then and there faithfully promised the said Evan, to discharge the said debt so due and owing to him the said Evan as aforesaid, in a reasonable time then next following; and to send him 201. in part of payment thereof in July then next following; and although the same July is long since past, during which the said Nancy continued sole and unmarried; and a reasonable time for the discharge of the whole of the said debt or sum of 581. 7s. 2d. according to the tenor and effect of the said promise and undertaking of the said Nancy, is also long since elapsed, and although the said Evan hath always from the time of making the said promise and undertaking, hitherto forborne and given day of payment of the said debt of 581. 7s. 2d. to wit, at Shrewsbury aforesaid, in the county aforesaid, whereof the said Nancy, while she was so sole and unmarried, and the said Denny and Nancy since their intermarriage respectively, there had due notice, yet the said Nancy did not, nor would pay the said 581. 7s. 2d. &c. and so assigned a breach in non-payment according to the promise. There were other counts upon forbearance to her, stating a debt due from S. F. Bancroft, but not alleging in what manner the said Nancy was liable to pay. To this declaration the defendant demurred specially, stating the following causes; for that "it is not alleged or shewn in the said declaration, from whom the said several sums of 5el. 7s. 2d., in the said declaration mentioned, were due and owing to the said Evan, at the said respective times when the said Nancy is supposed to have made the said several promises and undertakings in the said declaration mentioned, or that any person or persons were, or was then liable to pay him the said Evan those sums,» or 1804. JONES versus ASHBURNHAMS 1804. JONES versus ASHBURNHAṀ. any of them, and for that it is not alleged or shewn iti Action upon the case upon assumpsit. B. 1,2, f. (8) † 2 Mod. 702, 3; 1 Rol. 28, c. 35. ↑ Yelv. 184. husband of the defendant was indebted to the plaintiff, and died possessed of goods which came to her hands legitimo modo, and the defendant, in consideration that the plaintiff would forbear the debt for a certain time, promised to pay it. It is there said, that a forbearance to sue all the world is a good consideration, for it is a prejudice to the plaintiff, and a benefit to a stranger. But that is clearly an assumpsit in consideration of assets: and thought he cites Hume v. Hinton*, where it was not alleged that any goods came to the hands of the defendant which were the goods of the debtor; yet that was after yerdict, when the party might have proved assets though they were not stated. But another reporter who cites the same case + states, that it was held to have been no consideration, because the defendant was not liable to any suit, so that the plaintiff had no prejudice by such forbearance. In Quick v. Copleston, it appears, as if forbearance generally in an action against the widow of an intestate, without shewing her executrix, were a good consideration; but in one report it appears only that the case was adjourned; and the discourse was with the intestate's widow, as she was on her journey to London, and for fear of being arrested she made the promise: and a case was there cited, in which a promise made through fear of a dead body being arrested, although the party was not liable, was held to be good. [Lord ELLENBOROUGH, C. J. "That must clearly be a bad consideration. It is a promise obtained by a threat to do that which is contra bonos mores; obtained by working upon the feelings of the relations."] Laying aside these authorities, which stand upon grounds not tenable, there can be no doubt that upon general principles it is necessary to shew a liability in some person or other. For it is clear if a forbearance to sue 4. is stated, it must be shewn that he is liable to be Styles, 304. ↑ Hardres, 73. He cites it by the name of Hummers v. Hunton, but in Raymond, 32, it appears to be adjudged for the plaintiff. ↑ Sid. 242. Lev. 161. Keb. 866. 1804. JONES versus ASHBURNHAM, 1804. JONI 3 cersus ASHBURNHAM. sued ; and by a parity of reasoning, if the considera tion of this promise is a forbearance to sue any person what, soever in the world, some one must be shewn to be liable, whom it might be the defendant's interest to relieve from a suit. This declaration is therefore bad upon special demurrer ; for it does not shew either who was liable to be sued, or that any person whatsoever had assets to make him liable, or that the plaintiff himself was in a situation to have granted forbearance to any person whatsoever." JERVIS, contrà. "The question has been truly stated on the other side; but here it is not necessary to shew any liability to be sued on the part of the defendant's wife, or any one else, because the promise is in consideration of forbearance generally, and in that case it is immaterial whether the party making the promise, or any one else, is proved expressly to be liable or not. The rule, as to what is sufficient to be a good consideration for a promise, is laid down by Yates, J., in Pillans v. Van Mierop↑ ‹ Any damage to another, or suspension, or forbearance of his right, is a foundation for an undertaking, and will make it binding, though no actual benefit accrue to the party ndertaking.' Here the plaintiff had a right in him to sue some one for the recovery of his debt actually due from Bancroft; and though it might not appear who was fiable at the time, yet, subsequently, some person might have become liable in consideration of having assets. The giving up the right of action against such person is the relinquishing of a right within the rule laid down by Mr.Justice Yates. In the cases of Loyd v. Lee,‡ and Tooley v. Windham, there was no right in thre plaintiff to sue any one. Here there is a right to sue some one, and at least a possibility of a loss, which is sufficient to found an assumpsit upon, though there be no actual benefit to the other party, The cases cited on the other side, Quick v. Coppleston, and Hume v. Hinton, are decisive; that when the for Crooke Eliz. 206, Tooley v. Windham. He cited also Loyd v. 1 Strange, 94. bearance is general, not to sue any person in the world, it is not necessary to shew that any one is liable at the time of the promise made." 1804. JONES versus ASHBURNHAM. Lord ELLEN BOROUGH, C. J. "It seems to me, that toi decide in favour of this demurrer will not be to break in upon any rule of law, neither will it go to affect the rule which was laid down by Mr. Justice Yates, in Pillans v. Van Meirop. The general rule in law is, that in order to make a promise not a nudum pactum, there must be a consideration of benefit to one party, or of loss to another. When it is said that we are breaking in upon this rule, let us examine it, and see whether there is any thing in it which applies to this case. Except for the cases cited in argument, namely Hume v. Hinton, and Quick v. Coppleston; and there is hardly any case in the law to which some cases might not be found in opposition; there is no exception to the general rule, that in assumpsit on a forbearance there must be some one liable. Those cases, therefore, are not authorities to bind us; and applying the rule laid down by Mr. Justice Yates, the first ground for a consideration is, any damage to another.' How is this a damage to another? It does not appear from this declaration that Bancroft had left any person in rerum natura, who would be liable to be sued. There is no debtor who could be the object of a writ. Next, as a foundation for an assumpsit there must be suspension or forbearance of a right.' Right is a correlative term, and must mean a right capable of being enforced against some one. Here it is true there is a corpus debiti; but there is no fund out of which it is to be paid, no person against whom payment can be enforced. And there is no suspension of any right, unless there is an existing right capable of being prosecuted with effect at the time of the promise, which there is not here. It does not therefore appear that any thing laid down by Mr. Justice Yates in that case squares with the present. Let us look then to the cases. First to Styles, 248, Rosyer v. Langdall, rather than to the case which is cited from a subsequent part of the same book. Rosyer, an executor, brought an action of assumpsit VOL. III. N° 16. CC |
