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Rosyer against Langdale.
Hill. 1650. Banc. sup.
Pasch. 1650. rot. 100.
ROsyer an Executor brought an Action upon the Case upon an Assump∣sit against Langdale a Feme Administratrix,* 1.1 and declares that the Defendant, in consideration that he would forbear sute until she had ta∣ken out Letters of Administration, did assume and promise to pay unto him the Plaintif a certain sum of money owing unto him by the Intestate. Vpon Issue joyned, and a Verdict and a Iudgement for the Plaintif, The Defendant brought a writ of Error to reverse the Iudgement. And Bald∣win of his Councel took these Exceptions. 1. That the Plaintif had set forth no consideration in his Declaration for the Assumpsit; for all that is alleged is, that the Plaintif should forbear sute till the Defendant had ta∣ken out Letters of Administration, which is no consideration at all, for the Defendant was not lyable to be sued as Administratrix, until she had taken out Letters of Administration, except there were a cause depending, as here is not. And he cited Hob. rep. Bidwell and Cottons case, That if there be a sute commenced, though there be no cause for it, yet forbear∣ance to sue is a good cause to ground an Assumpsit upon.* 1.2 A second Excep∣tion was that the Venire facias is not awarded per Curiam, nec in Curia. Roll chief Iustice held the 1. a good Exception, for the Defendant was not chargeable before Letters of Administration taken forth, if she do not intermedle with the goods of the Intestate, and it doth not appear here that she did, neither is the Defendant compellable to take forth Letters of Ad∣ministration, for they may be granted to the next of Kin if the Ordinary pleaseth, according as the Statute ordains. Ierman, Nicholas, and Ask Iustices to the same intent, thereupon the rule was reversetur, nisi, &c. But be∣cause Day being of Councel on the other side took some Exceptions to the writ of Error and the retorn thereof, It was adjourned.