18881 PRIDOT I against HENBREY where the action was not by payee against maker, or where the note did not express a consideration upon the face of it. Now what is the principle upon which that case was decided? Evidently 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. Now look to the analogy between a note, as between maker and payee, and a bill as between drawer and acceptor, and apply the principles of that decision to the case in question. The only difference between the two cases is this, that in the one the party appears to act of his own accord, in the other he acts upon request. The maker of a note promises to pay without (as far as is to be collected from the import of the note) being required so to do, whereas the acceptor of a bill promises because he is requested; but the promise in each case is in substance the same. Apply then the principles of Bishop v. Young to this case. There is a privity between the plaintiff and defendant, independently of the bill; the defendant engages not for the debt of a third person, but his own. He engages not to a stranger, bat tỏ the party to whom he previously owes that debt, and it is specified in his engagement, that it is for that debt that the engagement is made. This case, therefore, the very case to which in Webb v. Geddes Mr. J. Lawrence probably refers is substantially in point in favour of the plaintiff. Rudder v. Price, 1 H. Bl. 547,, and Barry v. Robinson, 1 New Rep. 293., in which the objection, if tenable, would have occurred, tend to shew that the general opinion has been agreeable to that decision; 5 decision; and the case of Stratton v. Hill (a) confirms that doctrine, and extends it to a bill of exchange. That was an action of debt by the indorsee of a bill of exchange, against the person who had indorsed it to him, and who was also drawer and payee. A rule nisi was obtained to arrest the judgment, on the ground, that debt would not lie. But on cause shewn, the Court held that it would, and the rule was discharged. Now the only ground upon which that decision could properly have, proceeded was this, that between the immediate indorser and his indorsee there was privity. The indorsement implied that the indorser was debtor pro tanto to the indorsee, and that the indorsement was a contract by the indorser that that debt should be duly paid. Now the argument from that case to this is an argument à fortiori. That was clearly a less favourable case than the present, Here there is an immediate privity between the plaintiff and defendant independently of the bill. The defendant is immediate debtor to the plaintiff, and he contracts, by his acceptance, to pay that debt. Under these circumstances, we think the action of debt maintainable. Had there been want of immediate privity between the parties, or had the bill omitted to specify the consideration, the case might have been different; as it is, we think the action maintainable. 1828 PRIDEY against HENBLET. 1823. ་ Debt on a bond, whereby Sir N. C., G. S. W., and J. W. acknowledged themselves held and bound to the plaintiffs in 1000l. each, for which they bound themselves, and each of them for himself for the whole and entire sum of 1000l. each," subject to a condition that G. B. M. should render a true account of all monies received by him as treasurer COLLINS and Others against PROSSER and Others, ᎠᎬᏴᎢ on bond, given by Wegg to the plaintiffs for W. E., are also held and firmly bound in 2000l. each, for the whole and entire sum of 2000l. each; and we, Sir N. C., G. S. Wegg (the testator,) and J. W., are also held and firmly bound in 1000 each, for which we bind ourselves and each of us for himself, for the whole and entire sum of 1000l. each." That plea then set out the condition of the bond, whereby (after reciting that Held, that this G. B. Mainwaring had been appointed by the plainbond only, and tiffs (the justices assembled at the quarter sessions) gees, by remov. receiver for the county of Middlesex, and it being for the county of Middlesex : was a several that the obli ing the seal of one obligor, did thought proper by the Court that an adequate security should be given to the county, to the amount of 12,000%; not render it void as to the others. that the obligors in that bond had agreed to become (a) The sum of 2000. was set opposite the name of P. P., but no sums were set opposite the other names. all all monies which were then or should thereafter be in his hands as treasurer; and concluded, that the bond was not the deed of Wegg. Second plea, that Sir N. C. sealed and delivered the bond, and afterwards his seal was taken from the bond, without the privity or consent of Wegg or the defendants. Third plea, that the seal of Sir N. C. was taken from the bond with the privity and consent of the plaintiffs. Replication, that before the seal of Sir N. C. was taken from the bond, one F. C. agreed to become surety in his place, and executed a bond to the plaintiffs for 1000l., conditioned as the one declared on, and thereupon the seal of Sir N. C. was taken from the bond, and that F. C. had since paid the 1000l. Demurrer and joinder. Littledale, in support of the demurrer. The question is, whether the taking away of Sir N. C.'s seal had the effect of rendering the bond void as to Wegg. This was a joint and several bond, as to Sir N. C. Wegg and J. W. After the penal sum are these words; "for which payment we bind ourselves and each of us." They clearly shew the obligation to be joint to the extent of 10007., and any one being sued might have contribution from the others. It is not necessary to contend, that, because the obligees might sue each separately for 1000l., they might sue the three jointly for 30007.; but, assuming the deficiency in G. B. M.'s accounts to be less than 1000, they might sue jointly for that. The subject matter of the security was the entire conduct of G. B. M.; if each had been bound for a different part of his accounts, the bond might have been several; but the interest being joint, the case is distinguishable from Y y 2 Mills 1823, COLLINS against PROSSER Mills v. Marshall (a), and resembles Slingsby's case (b), upon the principle of which Anderson v. Martindale (c) and Southcott v. Hoare (d) were decided. It would certainly be more beneficial to the obligees, to consider this as a joint than as a several bond, for it would save the expense of bringing several actions, and would give them the benefit of a joint execution. Now, as all grants are to be construed most strongly against the grantor, this bond should be so construed as to be most beneficial to the obligees. Then, assuming it to be a joint and several bond, taking off the seal of one obligor avoids it as to all. Seaton v. Henson (e), Nichols v. Haywood (f), Michael v. Stockworth (g), 2 Roll Abr. Release (G.) pl. 5. If it be considered a several bond, still the defendants are discharged. Each obligor would have an interest in knowing who were his co-sureties, with a view to contribution, which he would be entitled to, although the bond were several. Deering v. Winchelsea. (h) There, too, the parties were bound by several bonds, therefore, à fortiori, there must be contribution where all are parties to the same bond. The pleas then are good, and the replication gives no sufficient answer to them, it does not even allege that the new surety was substituted with the privity of the testator. Rogers, contrà. This bond was several as to each party executing it. There is a material distinction between joint and several bonds and the present. In the former the obligation is joint, although the remedy is (a) Bridg. 63. (c) 1 East, 497. (e) 2 Lev. 220. 2 Show. 28. S. C. (b) 5 Co. 19. (h) 2 B. & P. 270. |