Hammond v. Cook ( 1853 )

The opinion of the court was delivered by

Bennett, J.

This case comes up on a motion in arrest of judgment. It is said the declaration is insufficient, for the want of consideration for the promise. We think not. It states that the suit was pending before a justice of the peace, in favor of Eobert IL Cook, against the present plaintiff; that the present defendant was bail for prosecution, and that he promised the plaintiff in this suit, before the court day, that if he would make no expense or preparation for trial, and would not attend the court, he would procure the said Eobert It. Cook to discharge his said action, and not further prosecute it. The declaration then proceeds to make the necessary averments, and assigns the breach.

Here was a damage to the promissee, and that is consideration enough, although there may have been no benefit to the promissor; but in this case, the present defendant had a collateral interest in that suit, which was to be discontinued, as bail for costs of prosecution.

When the defendant undertook that Eobert K. Cook should discontinue his suit, he was bound to see it done, or answer the consequences.

Judgment of the County Court is affirmed,