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HUme brought an Action upon the Case against Hinton,* 1.1 and declared, That whereas the Son of the Defendant did in his life-time owe unto the Plaintif 8 l. and dyed intestate, the Plaintif did demand the said 8 l. of the Defendant, being Mother to the intestate; whereupon she being sa∣tisfied of the justness of the debt, did assume and promise unto the Plaintif,
that if he would stay for the money till Mich. next, that then she would pay it. Vpon non Assumpsit pleaded, and a verdict found for the Plaintif, the Defendant moved in Arrest of Iudgement, that here was no consideration to ground the Assumpsit upon, because it was not the debt of the party that assumed to pay it, neither was she Executor or administrator nor con∣sequently lyable any way by law to pay it, and therefore an Assump∣sit to pay a remediless debt, if the Plaintif would stay for it, is no good As∣sumpsit, as in 6 Car. in this Court, in Morgans Case. An Assumpsit to pay the rent of the land behind, if the party would forbear to distrain Corn in the shocks, was adjudged no good Assumpsit, because such Corn is not distreinable, and it appears not here what person the Son was, or where he lived, or that he either had or lest any goods, and the meer ground of the Action is the piety of the Mother, and no other matter, And here ap∣pears no person liable to pay this debt, neither plainly, nor by intendment, and the Ordinary is not chargeable if no goods come to his hands. And 2ly. There is now no Ordinary, for it is taken away by the Parliament, and 9 rep. Bains case is not like to this case, neither is Iones and Smiths case, Trin. 8 Iac. rot. 192. like to this case, for there was a person liable to be sued, but it is not so here, so that this is a stronger case. But if there should be a good consideration, yet the averment of the performance of it is not good, for it is not certain how he stayed, Wild for the Plaintif held, that here is a good consideration, because the Plaintif is hereby tyed not to sue any person whatsoever for the debt till Michaelmas, and so it is a prejudice to him to forbear: And it shall be intended here that the Intestate did leave sufficient goods to satifie the debt; and though there be no Ordinary, yet the party that takes the goods may be sued, and the Case of Homes and Smith cited is for the Plaintif in my Report, and the judgement is not there entred in the Roll, but in the Margent only, it is entred pro Defen∣dente, and the case of Hill and Baily is since that, and that is with me, and is to be preferred before the other, because it is a later judgement. 2ly. The averment is good in substance, although it be not so express in words as it might have been, and it is now after a Verdict. The Court for the first point held, here was a good consideration,* 1.2 for it is that the Plaintif shall forbear to sue for the money generally, which goes to all the world, and it is not only to forbear to sue a particular person, but to forbear to sue for the money; and this forbearance may be a prejudice to the party, and a loss in not suing till that time. But for the latter exception Roll chief Iustice said, if the breach be not well assigned the verdict will not help it;* 1.3 and you say that you stayed in expectation of the money, and do not say absolutely that you stayed. Therefore let us see a book,* 1.4 and speak to the last point a∣gain on Saturday next. In this case Roll chief Iustice said, where there is no body else to be sued for a Debt, the Ordinary is to be sued,* 1.5 although he is not to be charged, if he have no goods, and in London it is usual to do it; and now Sir Nathaniel Brent is in place of the Ordinary throughout all England, Afterward judgement was given for the Plaintif, because the con∣sideration and the averment were held both good.
A••rest of judgement in an Action up∣on the case upon a pro∣mise.
Considera∣tion.
Breach.
Ordinary.
Debt.