Page:Harvard Law Review Volume 10.djvu/141

115 FORBEARANCE TO SUE, I15 In Cook V. Wright,^ the defendant was agent for a Mrs. Bennett, the owner of certain houses in front of which paving work had been done by the plaintiffs, as trustees of the parish, under the White- chapel Improvement Act of 1853, to the amount of seventy pounds, for which the " owner " was liable by the act. The defendant was tenant of one of the houses, and the trustees contended that he was an owner thereof under the act, and threatened to sue him, unless he gave his notes for thirty pounds, to which the claim was reduced. Thereupon he requested time, which was given him, and he gave his own notes for thirty pounds, on time, the first of which was paid. " At the trial, it appeared that he was not the owner of the houses, and was not personally liable under the act, and that in point of law the plaintiffs were not entitled to claim the money from him though they honestly believed that the was personally liable and intended to take legal proceedings against him for the amount.'* It also appeared that the defendant did not believe he was Hable, and gave the notes solely to avoid being sued. After full argument in the Queen's Bench, it was held that the notes were on good con- sideration, being given " in order to avoid the expense and trouble of legal proceedings against himself"; Blackburn, J,, saying, "If the suit had been actually commenced the point would have been concluded by authority." But that fact was held immaterial, the same judge saying, *' It is detriment to the party consenting to a compromise arising from the necessary alteration in his position which in our opinion forms the real consideration for the promise, and not the technical and almost illusory consideration arising from the extra costs of litigation." Cockburn, C. J., and Wightman, J., concurred. Here there was indeed a legal cause of action against Mrs. Bennett, the owner, but there was none against the defendant personally, and he did not believe there was, and his own notes were given solely to avoid a suit against himself. In Callisher v, Bischoffsheim,^ the plaintiff, believing that a cer- tain sum was due him from the government of Honduras, was about to take legal proceedings against said government to collect the same ; whereupon the defendant, '* in consideration that the plain- tiff would forbear from taking such proceedings for an agreed time, promised to deliver to the plaintiff certain securities, called Hon- duras Railway Loan Bonds, to the amount of six hundred pounds," etc. In a suit for a breach of this promise, it was admitted (by a 1 I B. & S. 559 (1861). 2 L. R. 5 Q. B. 449 {1870).