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Iohnson against Abington.
Mich. 1649. Banc. sup.
IOhnson brought an Action of the Case against Abington, and declared,* 1.1 that the Defendant in consideration that the Plaintif would deliver unto the Defendants Son such wares as his Son should desire, did assume and promise unto the Plaintif that he would pay the Plaintif for them, and a∣vers that he had delivered certain wares unto his Son, and that the Defen∣dant did refuse to pay for them, and for this he brought his Action. The Defendant pleads non Assumpsit, and upon this an Issue is joyned, and a verdict found for the Plaintif. The Defendant moved in arrest of judge∣ment, and for cause shews, that it doth not appear,* 1.2 that the Son of the De∣fendant did desire the Goods that the Plaintif delivered unto him, and for which he brings his Action, and the Assumpsit being to pay for such as his Son should desire, the Declaration ought to set forth an actual desire of the Son, to have the wares delivered. But Twisden of Councel with the Plain∣tif answered, that the delivery of the commodities by the Plaintif, and the acceptance of them by the Defendant implyed a desire, and it is not necessa∣ry to shew an actual desire. Ierman Iustice said, there ought at least to be a verbal desire. But Roll chief Iustice said, that the acceptance of the wares is an actual desire, and that is more than a verbal desire,* 1.3 and it is not necessa∣ry here to affirm the punctual words of the promise: but only the substance of it. And therefore let the Plaintif have his Iudgement, if better matter be not shewed.