Finch, Serj. and Recorder. The judgment ought to be arrested.
1. There are two promises alleged 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 showing *Page 779 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 and DODERIDGE, JJ. A declaration shall not be taken by intendment.
Ashley. There is a precedent in 42 El. One having beaten 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 and DODERIDGE, JJ., remained of the same opinion. It seems to me that there may be some difference in the cases, for the wound remains.