Reports and cases collected by the learned, Sir John Popham, knight ... ; written with his own hand in French, and now faithfully translated into English ; to which are added some remarkable cases reported by other learned pens since his death ; with an alphabeticall table, wherein may be found the principall matters contained in this booke.

The same Term in the same Court. Goodwin versus Willoughby.

GOodwin brought an action upon the case against Joane Willoughby wife of Thomas Willoughby, and upon non Assumpsit pleaded, it being found for the Plaintiff, it was moved in Arrest of Iudgment. 1. That the Plain∣tiff shews that Thomas Willoughby was indebted upon account, and doth not shew that Joane Willoughby is Executrix or Administratrix, and yet that she promised to pay, wheras in truth she hath no cause to pay, for there is no consideration, and so Nudum pactum.

Jermy for the Plaintiff: for the first, because it doth not appear for what cause he accounted; I answer, that this is but a meer conveyance: And for the second, that she does not suppose that the Feme is executrix, &c. But here is a good consideration, which is, that she shall not sue or molest, and that he gave day for payment, this is a sufficient consideration. But Stone of counsell with the Defendant said, that the first is the ground of the action, and therfore he ought to shew for what he accounted.

Crew chief Iustice, two exceptions have been taken, 1. For the alledg∣ing the manner of the account, which I conceive is good enough, and he need not shew the cause of the account: And as to the second, because it doth not appear that she is Executrix, or Administratrix, and so no consideration, and so no Assumpsit: But here she assumes to be Debtor and makes a pro∣mise to pay, which is an acknowledgment of the Debt by inference, and therfore he conceived that the Assumpsit was good.

Doderidge Iustice, for the first it is good enough, yet Cum indebitatus exi∣stit is no good Assumpsit, but here he shows a speciall way of Debt, and it would be long and tedious to describe his account. For the second there is no cause of action, because it doth not appear that she is Executrix or Admini∣stratrix, or Executrix of her own wrong.

If I say to one do not trouble me, and I will give you so much, this is not actionable, for there ought to be a lawfull ground, and for this cause the De∣claration is void, for it is only to avoid molestation: Give me time, &c. this is no good Assumpsit, for forbearance is no ground of action where he hath no cause to have Debt.

Jones Iustice agreed in the first with them, because a generall action upon the case sufficeth, and in truth it is but an inducement to the action; but for the other part he doubted, and he cited one Withypools case, an Infant with∣in age, promised to pay certain money, he makes an Executor and dies with∣in age; the Executor saith to him to whom the promise is made, forbear and I will pay you, and there an action upon the case did lye against the Execu∣tor upon this promise, and yet it was a void Contract, but there was colour of action, forbear till such a time, now the other hath lost the advantage of his Suit: But he gave no opinion.

Crew, It is a violent presumption that he is indebted: But by Doderidge here is no colour to charge her, but only by inference that she is Executrix.

If a stranger saith, forbear such a Debt of J. S. and I will pay it, it is a good consideration for the losse to the Plaintiff, and in this case it appears not that there is any cause, and Broom Secondary said, that Withypools case before cited was reversed in the Exchequer Chamber.

Jones, If an Infant makes a promise, it is void, and he may plead non As∣sumpsit, which Doderidge did not deny: But upon his Obligation he cannot plead Non est factum, for he said that he shall be bound by his hands, but not by his mouth.

Notes

• Where for∣bearance without cause of action, is no ground of an Assumpsit.