Phuter v. . Gunder

1 N.C. 791

• Court: Court of King's Bench
• Decided: July 5, 1793
• Status: Published

Opinion

The plaintiff declared quod cum the defendant's husband was indebted to him £ 42, and made her executrix, and died; she proved the will, and the plaintiff having told her he meant to sue her, she, in consideration of forbearance until such a day, promised to pay him. He avers the forbearance, and says she did not pay. And although he did not show wherefore the testator was indebted to him, the declaration was adjudged *well. For here the debt is only an inducement. 5 H., 7, 1; 21 H., 7, 15; 9 E., 4, 41. Aliter, if the promise creates the debt.

2. It is not averred that no part of the debt is paid. Sed nonallocatur, for the breach is alleged according to the promise, and judgment was given accordingly. Hob., 83.