1842.

SISON

v.

KIDMAN.

word collateral?] When a sum is primarily owing from one person, and another party comes in only in aid of such person, debt will not lie. [Maule J. Suppose the consideration for the note had been something done for a third party, would that make the note collateral?] No. [Erskine J. How is one of the makers more liable on the note than the other?] They are both equally liable; but the consideration is different. [Maule J. When a person becomes a party to a note, is he not subjected to all the liabilities which attach to it?] It may be admitted that it is not necessary to make any demand on the principal in order to render the surety liable; but that is consistent with the argument that the latter may shew the consideration of the note. The objection goes only to the consideration. The reason why debt will not lie between the indorsee and the acceptor of a bill of exchange is, that if you go to the original consideration the indorsee is not a party to it. In Milton's case (a) the action was by the payee against the acceptor, upon a bill drawn by a third person. Hale C. B. observed upon the argument, "But the great question here is, whether or not a debt or duty be hereby raised; for if it be no more than a collateral engagement or promise, debt lies not." Ultimately the court held that debt did not lie; "for that the acceptance does not create a duty, no more than a promise made by a stranger to pay, &c. if the creditor will forbear his debt; and he that drew the bill continues debtor notwithstanding the acceptance, which makes the acceptor liable to pay it." (b) That decision was followed in Browne v. London (c) and in Steward v. Hodges. (d) [Erskine J. Here, the question is between the original parties to the contract.] So it was in Milton's case, being between

(a) Hardres, 485.
(b) Vide antè, 177.

(c) 1 Mod. 285., 2 Keb. 695. 713. 758. 822.

(d) Skinner, 332. 346.

the payee and the acceptor. [Erskine J. There the
bill was drawn by a third person, and the payee might
be considered one step further off.] The reason seems
to be, that though in that case the payee may be a party
to the contract, yet the consideration was between other
parties; and the law appears to require that, in order to
maintain debt, there must not only be privity of con-
tract, but the consideration must be between the parties.
Randall v. Rigby (a) is a strong authority on this point.
There lands were enfeoffed to H. and the defendant, to
the use, intent, and purpose that the plaintiff, his heirs
and assigns, should receive out of the lands a yearly rent
of 637., payable half-yearly; and the defendant cove-
nanted with the plaintiff that H. and the defendant,
their executors &c., some or one of them, would pay to
the plaintiff, his heirs and assigns, the said yearly rent
at the times appointed for payment thereof.
It was
held that the plaintiff could not sue the defendant in
debt for the arrears of the annuity. [Maule J. The
court there seemed to have treated the contract as a
collateral contract. Is not this case more like Evans
v. Jones (b), where it was held that debt lies upon an
absolute contract by A. to pay on a certain day a
certain sum due from B. on mortgage?] It is difficult
to distinguish that case from Randall v. Rigby, ex-
cept that the latter is the stronger case; for there the
annuity was granted by the very deed which contained
the consideration. Parke B. there says, "Upon this
undertaking an action of covenant is the proper remedy,
in which the plaintiff will recover by way of damages
the amount actually in arrear. The case falls therefore
within the principle of the authorities referred to in
Viner's Abr. Debt (D), and ranges itself also with that
of the lessor and lessee after assignment of the estate, as

(a) 4 M. & W. 130.

(b) 5 M. & W. 295.

1842.

SISON

V.

KIDMAN.

1842.

SISON

v.

KIDMAN.

-

decided in Thursby v. Plant (a) and in Mills v. Auriol. (b)
Speaking of Bishop v. Young (c), where it was held that
debt lies by the payee against the maker of a promissory
note expressed for value received, Bayley J. says, in de-
livering the judgment in Priddy v. Henbrey (d),
"What
is the principle upon which that case was decided? Evi-
dently this, that where there is a privity (independently
of any security) between the parties, and the debtor
undertakes not for another's debt, but for his own, -not
to a stranger but to the creditor, and he enters into
a contract to pay that debt, specifying therein that he
enters into it for that debt, an action of debt lies."
[Tindal C. J. You do not bring forward any case where
the party has entered into a new contract. A parallel
case to the present would be, if the acceptor of a bill of
exchange drawn by a third party, instead of paying,
were to give the payee a promissory note for the
amount.] Here, it is submitted that it is the same as a
payee suing the acceptor.

Storks Serjt., contrà, was stopped by the court.

TINDAL C. J. When the defendant signed this note he entered into a new and original contract: he took the debt upon himself. It abundantly appears upon the plea that the note was made for a good consideration. I think that Evans v. Jones disposes of all argument upon the subject.

4

ERSKINE J. I also think that there is no doubt in this case. A good consideration for the note appears on the defendant's plea

(a) 1 Sid. 401., 1 Wms.

Saund. 230 b.

(b) 1 H. Bla. 433.

then the case is that of a

man who agrees to pay a certain sum on a good consideration.

MAULE J. The case is wholly free from doubt.

Judgment for the plaintiff.

1842.

SISON

v.

KIDMAN.

EJECTMENT. At the trial before Gurney B., at A copyhold

is devised by

A. to B. for

the last summer assizes for the county of Sussex, a verdict was found for the plaintiff, subject to the opinion life, remainder of this court upon the following case:

to C. in fee.

B. is admitted
and dies.
C. has, before
entry, a

descendible

upon the death of C.

the

customary

The property in question is copyhold of inheritance, within, and parcel of, the manor of Brighton, descendible according to the custom of borough English, and devisable. The lessor of the plaintiff claims as customary estate; and heir of Charles Parker, her uncle. Thomas Parker, the father of Charles Parker, and his customary grandfather of the lessor of the plaintiff, died in 1801, heir, and not seised in fee of this copyhold tenement, at the will of heir of A., is the lord, according to the custom of the manor, and entitled to the intestate, leaving Elizabeth, his widow, and Charles and copyhold. George, his sons, and Mary, his daughter, him surviving. Whereupon the property descended to George Parker, as the younger son and customary heir, subject to his mother's free bench. At a customary court of the manor, held in 1815, Elizabeth and George Parker were admitted, and surrendered the premises, for a valuable consideration, to Charles Parker in fee. Charles Parker, having been admitted, to hold in fee at the will of the lord, &c., surrendered to the use of his will, and

1842.

DOE dem.
PARKER

บ. THOMAS.

died in 1817, unmarried and without issue. From his admittance to the time of his death, Charles Parker was seised, and in the receipt of the rents and profits.

In 1816, Charles Parker made and published his will, devising as follows:

"I give, devise, and bequeath all my freehold, copyhold, and leasehold messuages, lands, tenements, and hereditaments, unto my mother Elizabeth Parker, and my sister Mary Parker, subject to this condition, that the estate, right, or interest of my said sister shall not be subject to the contract or interference of any husband she may marry, or be liable to his debts or engagements. And I direct that my said sister's receipt or receipts, from time to time, for money expressed to be received shall be good and effectual discharge or discharges. And in case my said sister shall depart this life, either in the lifetime of my said mother or after her decease, leaving lawful issue, then from and immediately after the decease of the survivor of them my said mother and sister, I give, devise, and bequeath, my said freehold, copyhold, and leasehold estates unto, amongst, and equally between, &c.; and, if but one child, then to such one, his or her heirs, executors, administrators, and assigns, absolutely." Then followed several other limitations which never took effect, concluding with a limitation to "the person or persons, his, her, or their heirs, executors, administrators, and assigns, absolutely, who will by law be deemed, and is or are, my own right heirs."

The will of Charles Parker was duly executed to pass the property in question, pursuant to the said surrender to the use of his will, and according to the custom of the said manor. Upon the death of Charles Parker, Elizabeth Parker his mother, and Mary Parker his sister, entered upon the property in question, and into the receipt of the rents and profits thereof.

At a customary court of the said manor, duly held on