Cowlin v. Cook, 1 N.C. 151, 1 Mart. 151 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 151, 1 Mart. 151

Cowlin vs. Cook.

Trin. 2 Car.

IN case. The plaintiff declared quod cum, the defendant was indebted to the plaintiff on an obligation in so much, and he intended to sue him, the defendant in consideration that the plaintiff would deferre solutionem denariorum prædict. and not implead the defendant, he would pay him; and on this promise the action was brought.

Littleton.

This is not a good consideration: for he may forbear to sue him for an hour and sue him the next, or a day &c. In M. 19 Jac. Keeble’s case, it was determined that a lease at will is not a good consideration to ground an assumpsit to the lessor, for he may determine the lease presently.

Curia.

Crew, C. J. Doderidge, J. Jones, J. and Whitlock, J.

By the words non implacitaret he has waved the benefit of the obligation: But yet this promise does not take away the force of the obligation: for he may sue the obligor presently, and the other may have his action on the promise quod non implacitaret, which shall not be intended for an hour, or a day, but for his whole life. In Bracham’s case, it was resolved, that a consideration that he would forbear, shall be intended for his whole life. But if it be paululum tempus, it is a bad consideration. Poph. 183. Noy 83. Hobb 219. 2 Cr. 683.