Barber v Fox
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 859
COURT OF KING'S BENCH
[134] de term. sanct.e trim. anno reqni regis, car. II. 22. 24. barber versus Fox. Yorkshire, to wit.-Be it remembered, that heretofore, to wit, in Easter terra last past, before our lord the King at Westminster came Stephen Barber by James Smith, his attorney, and brought here into the Court of our said lord the King then there his certain bill against Humphry Fox in the custody of the marshal, &c. of a plea of trespass upon the case, and there are pledges of prosecution, to wit, John Doe and Richard Roe, which said bill follows in these words, to wit: Yorkshire, to wit, Stephen Barber complains of Humphry Fox being in the custody of the marshal o£ the Marshalsea of our lord the King before the King himself for this, to wit, that whereas one Anthony Fox, father of the said Humphry, late of Thorpe in the parish of Hatherseidge in the county of Derby in his life time, to wit, on the 17th day of February in the year of our Lord 1654, by his certain writing obligatory, sealed with the seal of the said Anthony, bearing date the same day and year, acknowledged 860 BARBER V. FOX 2 WMS. BATJHD. 138. himself to be held and firmly bound to the said Stephen in the sum of 921. 12s. of lawful money of England,(l) with a condition to the said writing subscribed, that if the said Anthony, his heirs, executors, or administrators, or any of them, should pay to the said Stephen the full and just sum of 511. 16s. of like money of England, at or upon the 18th day of February, which should then be in the year of our Lord 1656, at or within the then mansion-house of the said Stephen Barbar situate in Uxhill in the said county of York, without fraud, or further delay, then the said writing obligatory should be void, and of no effect, otherwise should stand and remain in full force, and virtue; which [135] said 511. 16s. the said Anthony in his life-time, or the said Humphry after the death of the said Anthony, (of which said Anthony he the said Humphry is son and heir) have not, nor have either of them, paid to the said Stephen, on the said 18th day of February in the said year of our Lord 1656, at the said mansion-house of the said Stephen according to the form and effect of the said condition, whereby the said writing obligatory became forfeited. And the said Stephen afterwards, to wit, on the 1st day of January in the 21st year of the reign of our Lord Charles the Second now King of England, &c. intended to sue the said Humphry, as son and heir of the said Anthony his father, on the said writing obligatory to him in form aforesaid forfeited ; of which said intention the said Humphry having notice, he the said Humphry, on the day and year last aforesaid at Rotheram in the county aforesaid, in consideration that the said Stephen, at the special instance and request of the said Humphry, would then forbear his suit so intended to be prosecuted by him the said Stephen on the said writing obligatory against the said Humphry as son and heir of the said Anthony, undertook, and then and there faithfully promised the said Stephen, that he the aaid Humphry would well and faithfully pay and content the said Stephen the said 511. 16s. when he should be thereto afterward required. And the said Stephen in fact says, that he, giving credit to the aforesaid promise and undertaking of the said Humphry, did then and there at the said instance and request of the said Humphry forbear his suit in form aforesaid intended to be prosecuted bv him the said Stephen on the said writing obligatory for the said 921. 12s. against the said Humphry as son and heir of the said Anthony his father, yet the said Humphry not regarding his aforesaid promise and undertaking, but contriving and fraudulent!}' intending craftily and subtilely to deceive and defraud the said Stephen in this behalf, has not paid the said 511. 16s. to the aaid Stephen according to the said promise and undertaking, nor has he in anywise hitherto contented him for the same, (although to do this, the said Humphry afterwards, to wit, on the 10th day of February in the 22d year of the reign of our said lord the now King, at Ilotheram aforesaid, in the county aforesaid, was requested by the said Stephen,) but to pay the same to him, or in anywise to content him for the same has altogether refused, and yet refuses, to the damage of the said Stephen of 1001. And therefore he brings suit, &c. The defendant pleads non aasmnpsit, and verdict and judgment for the plaintiff. (1) Here, it seems, should have been added this allegation, "to be paid to the said Stephen, whenever after the said Anthony should be thereto required, for which payment well and truly to be made, he the said Anthony bound himself and his heirs by the said writing obligatory."
English Reports Citation: 85 E.R. 860
COURT OF KING'S BENCH
[136] 24. barber versus Fox. S. C. 1 Vent. 159. 2 Keb. 811, 836. An ammmpxit is not maintainable against an heir on a promise to pay money due upon the bond of his ancestor, unless the heir was expressly bound in the bond. Assumpsit, that whereas one Anthony Fox, the father of the defendant, by his writing obligatory became bound to the plaintiff in 921. 12s. upon condition to pay him 511. 16s. at a certain day past, which was not paid, and so the obligation became forfeited, and afterward Anthony Fox the father died, and the defendant was his son and heir, wherefore the plaintiff intended to sue the defendant as son and heir on the a WHS. BAONB. 137. TR.IN. 22 CAR. II. REGIS 861 said bond; and the defendant having notice of it, in consideration that the plaintiff, at the special instance and request of the defendant, would forbear his intended suit against the defendant as son and heir on the said bond, undertook and promised the plaintiff to pay him the said 511. 16s. on request; and the plaintiff averred forbearance, and yet the defendant had not paid the said money, although on such a day and year he was requested, &c. to the damage of the plaintiff, &c. On non assumpsit pleaded a verdict was found for the plaintiff. And now Weston moved in arrest of judgment, that here was no consideration ; for it does not appear that the defendant was suable upon this bond as son and heir, for it is not shewn that Anthony Fox, the defendant's ancestor, whose son and heir he is, had bound himself and his heirs by the said bond : and if the heir is not bound expressly by name, he is not bound at all, and therefore here was no consideration to found this promise; wherefore judgment was staid until it should be moved on the other side. And afterwards Saunders for the plaintiff moved for judgment, and said, that though the declaration would have been bad on demurrer, yet it is now made good by the verdict, for the jury have found that the defendant was bound as heir in the aaid bond, for otherwise there was no consideration, and they ought to have found that the defendant did not undertake, &c. if there was no consideration, or otherwise they may be attainted for a false verdict; but they having found that the defendant did undertake and promise as the plaintiff has declared, it ought of necessity now to be intended that Anthony Fox had bound himself ami his heirs by the said bond. Sed non allocator; for by the Court, though they would intend a personal lien against an executor, if he has assets in his hands, though it be not averred, yet they will not intend a real lien against an heir, though he be bound by the bond [137] of his ancestor, unless it ia expressly alleged; and therefore they would not intend it here, though it be after verdict; wherefore judgment was arrested ; quod nota.(2) (2) But where a father, being indebted to J. S. in 1001. by bond, made a fraudulent deed, and thereby gave all his goods to his son, and died, and upon a conversation had concerning the fraudulent deed, the son promised J. S. in consideration he would deliver the bond to him, and make an acquittance and discharge to him of the debt, to pay him th& 1001. ; and an action having been brought thereon, and a verdict for the plaintiff, it was moved in arrest of judgment, that the consideration was not good, because it did not appear that the son was liable to the payment of the debt, either as heir, or executor or administrator, or executor of his own wrong; and therefor* delivering the bond, and making the acquittance or discharge to him, was not good : but it was answered and resolved, that the consideration was good j and it should be intended that he was liable, or at least that the discharge was made to the party who was liable, for the plaintiff promised to discharge the debt, and that should be intended to be made to the party who was liable to the payment of it, or else it would be do discharge. 1 Sid. 31, pi. (9). If that was in truth a fraudulent deed of gift of the goods by the father to the son, as stated in the case, the son, after his lather's death, would be chargeable for this debt as an executor of his own wi-ong, though possession of the goods had been delivered to him at the time of the deed. For it is holden, that if a man makes a fraudulent gift of his goods in his life-time to oust his creditors of their debts, the vendee after his death shall be charged for them. 1 Hal. Abr. 549 (C.), pi. 3. And the only way in which he can be so charged is, as executor of his own wrong. 2 Leon. 223, Stamford's case. Cro. Jac. 271, Hawes v. Leader. Yelv. 197, S. G., where it is said, that the goods are liable to the creditors in the hands of the vendee, as an executor of his own wrong, if the deed of gift be fraudulent. And the reason is, because every intermeddling without authority after the death of the party makes the person so intermeddling an executor of his own wrong. Dyer, 166 b. Stake's case. And the same point was recognised in the case of Edwards v. Harben, 2 T. E. 587, where it is adjudged that if a crediter takes...
To continue reading
Request your trial
-
Forth and Others v Stanton, Widow
...1 Cr. & M. 101, Lord Falmouth v. Thomas, per Bayley B.] (m) For the modern cases on this subject see the notes to Barber v. Fox, pout, ò2 Saund. 136. English Reports Citation: 85 E.R. 217 COURT OF KING'S BENCH Forth and Others and Stanton Widow. See Sutton v. Grey [1894], 1 Q. B. 288; Har......
-
John Arthur Day and Amanda Jane Dalgety v The Commissioners for Her Majesty's Revenue & Customs, TC 04343
...to themselves. That amount was not therefore part of the consideration paid for 14 Somerville in our judgment. 3 Barber v Fox (167 0) 2 Wms.Saund. 134, n.(e); Thoma s v Thomas (1842) 2 Q.B. 851, 859; Tweddle v Atkinson (186 1) 1 B. & S. 393, 399; Pollway v Abdullah [1974] 1 W.L.R. 493, 497;......
-
Carter v Dickenson
...Walker v. Taylor Dr. Cas., temp. Nap. Hale v. The Saloon Omnibus Company 4 Dr. 492. Shears v. RogersENR 3 B. & Ad. 362. Barber v. FoxENR 2 Saund. 136; note, by Serjeant Williams. Clements v. EcclesUNK 11 Ir. Eq. Rep. 229. Wood v. Dixie 7 Q. B. 892. Twyne's caseUNK 1 Sm. L. C. 1. Holbird v. ......