Barber v Fox
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1726 |
| Date | 01 January 1726 |
| Court | Court of the King's Bench |
English Reports Citation: 86 E.R. 108
IN THE KING'S BENCH, EXCHEQUER, COURT OF CHANCERY
barber versus Fox. 2 Saund. 136. 2 Keb. 811. See 1 Salk. 23, 25. Far. 13. 1 Lev. 165. N. Lutw. 148. 1 Sicl. 31, 248. Trin. 22 Car. 2, Rot. 855. In an assumpsit the plaintiff declared, that the ancestor of the defendant became bounden to him in a certain sum, and afterwards died, and that he demanded it of the defendant being his heir; and the defendant, in consideration that the plaintiff would forbear to sue him for such a time, promised ha would pay him. To this the defendant pleaded non assumpsit, and a verdict was found for the plaintiff. It was moved iti arrest of judgment, for that at the time of the promise there doth not appear, that there was any cause of suit against the heir; for 'tis not set forth, that the ancestor did bind his heirs, and the consideration is not here to forbear to sue generally, but to stay a suit against the defendant, whom he could not sue. To which it was answered, that after a verdict it shall be intended there was cause of suit, as Hob. 216, Bidwell and Cation's case, an attorney brought an assumpsit upon a promise made to him, in consideration that he would stay the prosecution of an attachment of privilege ; and there held, that it need not appear that there was cause of suit, for the promise argues it, and it will be presumed. And here 'tis a strong intendment, that the bond was made in common form, which binds the heirs. But judgment was given against the...
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