Miles v. M'Lellan ( 1819 )

"135] *The opinion of the Court was delivered by

Gantt, J.

On the first ground taken in the brief respecting the use of the horse, it is to be observed, that there was some evidence in the trial below, which went to show that the defendant was scarce of corn at the time, the article itself difficult to be procured, and at a high rate. Under such circumstances the taking of the horse by the plaintiff, to be fed throughout the summer, for his work, might have been a convenience to the defendant himself. At any rate it left the case very doubtful, whether the accruing interest on the note and the support of the horse, at such a time, might not be considered as the value of his services.

On the second ground in the brief, there can be no question but that forbearance to sue for a certain time is a sufficient consideration for a new promise by the debtor,¹ and for the non-performance of which an action of assumpsit may be maintained. Where money is paid down, as in this case, for forbearance,² it would follow, that, as the consideration is good in law, it could not be recovered back by the party paying it, or be the subject of a legal discount. There are cases, indeed, which go to show, that to constitute forbearance a good consideration, such forbearance must be for a reasonable time ; (1 Roll. Abr. 34 ;) and that forbearance for a little time, (1 Roll. Abr. 23,) or some time, is not sufficient. As the ten dollars taken in this case, exceeded considerably the rate of legal interest for the time of forbearance, the not falling strictly within the meaning of the words, “a little or some time,” it was with reluctance that the presiding judge felt himself restricted in the exercise of a feeling which would have l.ed him, but for the principles of law, to discount from the amount of the note, the excess of interest.

Mayrant, for the motion. Ervin, contra.

The third ground, in relation to the services of the horse, has been commented upon in the observations made upon the first; and the fourth and the last, is too general to admit of comment.

The Court are of opinion that the decree below was *Iegal, and that the defendant can take nothing by his motion ; in which opinion L 1 _ the Court are unanimous.

Colcock, Johnson-, RichaRDSon, and Nott, JJ., concurred.

1 2 Rick. 113.

2 5 Rich. 53.