Page:Harvard Law Review Volume 10.djvu/139

113 FORBEARANCE TO SUE, II3 FORBEARANCE TO SUE. TS forbearance to sue upon an unenforceable cause of action a •^ sufficient consideration for a promise ? Many respectable au- thorities declare that it is not; and such is generally the language of text-books on this subject. See also Davisson v. Ford,^ Long v, Tovvl,^ and Harris v, Cassady,^ for general statements of the same doctrine. One of the strongest cases on this side of the question is Palfrey v, Portland, Saco, & Portsmouth R. R. Co.* The plaintiff's husband, an employee of the defendant, was killed while on duty, through the defendant's negligence. The defendant, ** in consider- ation of the premises and of her forbearance to sue it," promised to pay the widow fifty dollars a month during her life, which it did for several years, and then discontinued payment. In a suit by her on such contract (not in tort as the report states), it was held she could not recover ; because, the death of her husband being no foundation for an action for damages,^ she could not have recovered in her forborne suit, and therefore the defendant's promise was " without consideration and void " ; citing Tooley v. Windham,* and Hammon v. RoU.^ In Dunham v. Johnson,^ Allen, J., says, " Whether forbearance to prosecute a groundless claim is sufficient consideration for a promise to pay money, or under what circumstances forbearance to sue a doubtful or contested demand will be sufficient, it is not necessary to consider," and Palfrey's case is cited, without comment. In Hammon v. Roll, supra^ C held the joint and several bond of A and B, and released A therefrom. Afterwards B, in considera- tion that C would forbear the collection of said bond till a certain day, promised to pay it at that time; but in assumpsit upon such promise it was held that, as the bond was entirely discharged by the release to A, there was no longer a debt which could be recovered of B, and the promise to forbear was no consideration for B's new promise to pay. See Herring v. Dorell.^ In Loyd v. Lee,^^ forbearance to sue a note given by a married 1 23 W. Va. 617. ^ I Cush. 475. 8 13s Mass. 313. 2 42 Mo. 545. 6 Cro. Eliz. 206; 2 Leon. 105. » 8 Dowl. Pr. C. 604 (1840). 8 107 Ind. 158. ' March, 202. 1° i Str. 94.
 * 4 Allen, 55 (1862).