Almot v. Pickton, 1 N.C. 203, 1 Mart. 203 (1793)

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

1 N.C. 203, 1 Mart. 203

Almot vs. Pickton.

Trin. 3 Car.

I. S. promised with his daughter, a certain sum in marriage, and afterwards the plaintiff intending to sue him on this promise, (having married his daughter) the said I. S. told him he would leave him as much as he would give to any of his other children. The plaintiff alledged that I. S. gave to his daughter such a sum, but that he did not leave him so much; that he did not sue him during his life, and that I. S. *made the defendant his executor, and died, &c. Non assumpsit was pleaded, and there was a verdict for the plaintiff. Now Ashley, the King's Serjeant prayed judgment.

Finch, Serj. and Recorder. The judgment ought to be arrested.

1. There are two promises alledged here, and non assumpsit is pleaded: it does not appear to which of them it relates.

Curia. It refers to the promise on which the action is brought.

2. That he would leave the plaintiff as great a portion as he would give to any of his children, and there is an averment that I. S. gave more to such one of his children than to the plaintiff, without shewing when; perhaps it was before the promise made to the plaintiff, and then the promise quod daret does not extend to it.

Whitlock, J.

It may be so intended.

Jones, J. and Doderidge, J. A. declaration shall not be taken by intendment.

Ashley. There is a precedent in 42 El. One having beated and wounded another, promised in consideration of a forbearance of a suit, to pay him as much money as he would expend, in getting cured: and on an averment in the declaration, that he spent so much, it was held well, enough. I do not recollect the name of the case.

Jones, J. and Doderidge, J. remained of the same opinion.

Doderidge, J. It seems to me that there may be some difference in the cases; for the wound remains.

Jones, J. There is no difference.

To which Doderidge, J. seemed to assent. Poph. 183.