Page:Harvard Law Review Volume 10.djvu/140

114 114 HARVARD LAW REVIEW, woman was held, at Nisi Prius, not to be a good consideration for her promise to pay, made when sole; since the note was absolutely void in the first instance. In MulhoUand v, Bartlett/ the defendant was threatened ^vith a suit upon a claim against a firm in which he was not a partner^ and for which he was in no way liable. He gave the plaintiff a written agreement to pay the claim *' to avoid the trouble and an- noyance of defending myself at law, from being made liable as a partner in said firm." This was held not binding for want of con- sideration. And see Bates v. Sandy.^ Jones V. Ashburnham,^ sometimes cited on this side of the ques- tion, turned really upon the fact that, although the plaintiff had a just and valid claim due from a deceased person, yet at the time he promised to forbear suing on it no administrator or representative of such person had been appointed who could be sued, and therefore there could be no forbearance to sue when no suit could even be brought, and so the promise of the defendant to pay the debt in consideration of a promise to forbear was without consideration. Rosyer v. Langdale* is much like it. See Schroeder v. Fink,^ and Nelson v. Serle,^ which may well rest on the same ground. ■ Of course, if a plaintiff *' well knew " or really believed he had no cause of action, he could not recover for forbearing to sue upon it, as that would be a gross fraud, and merely blackmail. Wade v, Simeon ; "* Ormsbee v. Howe ; ^ Ex parte Banner ; ^ Headley v» Hackley.i^ Perhaps the same rule would apply in a somewhat less degree, if the plaintiff had not the slightest reason to believe he had a good cause of action. On the other hand, reason and analogy seem to suggest, and the more modern authorities hold, that, if a meritorious claim is made in good faith, a forbearance to prosecute it may be a good consideration for a promise, although on the facts or on the law the suit would have failed of success. In McKinley v. Watkins,^^ it was held that a forbearance to sue by one who erroneously but honestly supposes he has a good cause of action is a good consideration for a promise. And see Miller v. Hawkes.^ 1 74 111. 58 (1874). 6 60 Md. 436. 9 17 Ch. D. 480. 2 27 III. App. 552 (1888). 6 4 M. & W. 795. 1^ 50 Mich. 43. 8 4 East, 455 (1804). 7 2 C. B. 548. 11 II 111. 140 (1851).
 * Style, 248. 8 C4 vt. 1S2. 1^ 66 III. 185 (1872).