What is the principle de 1823. PRIDDY v. against the acceptor of a bill of exchange, for, his acceptance is but a collateral engagement, but that it will lie against the drawer, for he is really a debtor by the receipt of the money. He refers also to Hodges v. Steward, Skin. 346, HENBREY; where it was allowed by the Court, that debt will lie against the drawer of a bill of exchange for value received, and the reason given is," but this is for the apparent consideration." After noticing Rumball v. Ball (a), he says, “indeed if it be true that an action of debt will lie against the drawer of a bill of exchange in favor of the payee, it seems to me to be the necessary effect of the statute of Anne, which puts notes on the same footing with bills of exchange, that debt may be maintained by the payee of a promissory note against the maker." His Lordship concludes, therefore, that in that particular case, debt might be maintained, but he guards against any inference that the action would lie by the payee against the maker, where the note does not express consideration upon the face of it. cided by that case? It is this, that where there is a privity, independently of any security, as between the parties, and the debtor undertakes, not for another's debt, but for his own, not to a stranger, but to a person to whom he owes the debt, and he enters into a contract to pay, an action of debt lies. Look to the analogy between the maker and payee of a note, and the drawer and acceptor of a bill of exchange. As between drawer and acceptor of a bill, the principle of that decision is precisely analogous to the case under consideration. The only difference is, that in the one case the party appears to act of his own accord by giving the note; in the other he acts upon request. If he gives a note, he gives an express promise to pay it, whether the instrument requires him to do so or not; whereas if he is the acceptor of a bill, he promises because he is requested; but the promise in each case, is in substance the same. Apply the principle of Bishop v. Young to this case. There is a privity between the plaintiff and defendant, independently of the (a) 10 Mod. 38. 1823. PRIDDY v. HENBREY. bill. The defendant engages not for the debt of a third person, but for his own. He enters into that security to a person to whom he owes money, and the substance of his engagement is to pay that debt. There is one case therefore expressly in favor of the plaintiff. The case of Webb v. Geddes is also to the same effect. In the case of Rudder v. Price (a), and in Barry v. Robinson (b), though the circumstances in each were nearly the same, the objection was not taken; but these decisions, as far as they go, are conformable to those I have mentioned. The case of Stratton v. Hill (c), confirms the same doctrine, and extends it to bills. of exchange. That was debt upon a bill of exchange by the indorsee against the drawer, and the plaintiff having recovered a verdict, a motion was made in arrest of judgment, on the ground that debt would not lie, and on cause being shewn, the Court held that it would. The only ground on which that decision could possibly have proceeded was, 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 it was a contract by the indorser, that that debt should be duly paid. The argument arising from that case (and it is an argument à fortiori) is applicable to this, and that is a less favourable case than the present, because here is an immediate privity independently of the bill, between the plaintiff and the defendant. The defendant is the immediate debtor to the plaintiff, and contracts to pay the debt. Under these circumstances, we think the action of debt is maintainable. Had there been a want of immediate privity between the parties, or had the bill omitted to state consideration, the case might be different; but as there is privity and consideration stated, we think judgment should be for the plaintiff. Judgment for the plaintiff. (a) 1 H. Bl. 547. (b) 1 New Rep. 293. (c) 3 Price, 253. The KING . LAWRENCE KENWORTHY. 1823. ner was con sentence of INDICTMENT for perjury. After conviction at the Where a priso Summer Assizes for Chester, 1822, judgment was entered victed of peragainst the prisoner in the following form:-Wherefore all jury in an inferior jurisdicand singular the said premises being seen by the said justices tion, and the here, and fully understood, it is therefore ordered, that he transportation the said Lawrence Kenworthy be transported to the coast of the record, New South Wales, or some one or other of the islands ad- as follows: jacent, for and during the term of seven years; and that he the said Lawrence Kenworthy be in mercy, &c. Error being brought, the record was removed into this Court, and last, seen by the Term was entered on "Wherefore all and singular the said pre mises being here, and fully understood, it is therefore ordered that he the said L. K. be transported New South Wales, or some one or other of the islands adjacent, for and during the years, &c." Held, on error brought, that (f), judgment at all, and this to the coast of term of seven D. F. Jones argued the case for the prisoner, and contended, first, that the judgment was erroneous in form, in using the words "It is ordered," instead of "It is con-, sidered;" and second, that it was erroneous in substance, being a judgment of transportation only, without regard to the provisions of 2 Geo. 2. c. 25. s. 2, and 56 Geo. 3. c. 27. Upon the first point he cited 4 Inst. 70. Robins v. Same bel (a), Coxe v. Cropwell (b), Robins v. Sanders (c), comb's case (d), Gregory v. Eades (e), Peacock v. Ventris v. Carter (g), Campbell v. French (h), and Com. Dig. tit. Courts, p. 13, to shew that the form of entering the judgment was contrary to all former practice. the second, the 2 Geo. 2. c. 25. s. 2, enacts, that judgment of transportation may be pronounced besides the punishment the proper which might be before imposed, and therefore the Court Bell Slo Then as to this was no Court award ed a proceden do to the Court below, commanding them to pronounce judgment; but in the mean time allowed the prisoner to below ought not to have given judgment of transportation only, but should have pronounced it as an additional punish- be bailed. ment to intermediate confinement. It has been decided, that where the law appoints a particular punishment for any 1823. The KING v. offence, there is no power to alter it in the judgment, either by addition or diminution. Rex v. Walcott (a), and Rex v. Reed (b). But according to 56 Geo. 3. c. 27, the KENWORTHY. judgment here is bad, because the Court below should either have sentenced the prisoner to be transported to such place as the king in council should appoint; or should have ordered him to be transported generally, leaving it to the crown to direct the place of transportation. Here the Court below has itself directed the place, which it had no power to do, and therefore the judgment is erroneous. The judgment being therefore erroneous, the prisoner is detained without any lawful authority, and is entitled to his discharge. The Court below cannot now correct its mistake by pronouncing the proper judgment, nor has this Court jurisdiction for that purpose; Rex v. Baker (c), and Rer v. Nichols (d). The statute under which the prisoner was indicted, directs that the judgment shall be pronounced by the Court before which the conviction takes place; and therefore this Court is ousted of jurisdiction. Littledale, for the Crown, admitted that the judgment upon the prisoner could be pronounced by the Court below only; but he contended, that if this judgment was erroneous, it was no judgment at all, and therefore the prisoner must be remitted to the Sessions, and there receive the proper judgment, for which purpose this Court had jurisdiction. Error will not lie on that which is no judgment. Here there is in effect no judgment, and the writ of error is premature. The only course to be adopted by this Court is to order the inferior jurisdiction to award the proper judgment. ABBOTT, C. J.-We are, upon the whole, of opinion, that the informalities and errors in the entry of the supposed (a) 4 Mod. 395. (c) Carth. 6. 1823. The KING judgment of the inferior Court in this case, are such, that we are driven to the necessity of treating it as no judgment at all. We are then called upon to act precisely as if no judgment had ever been passed, which certainly involves KENWORTHY. very considerable difficulty. The statute of 2 Geo. 2. c. 25. s. 2, is couched in very plain and imperative language. It directs, that "it shall and may be lawful for the Court or Judge before whom any person shall be convicted of wilful and corrupt perjury, to order such person to be sent to some house of correction for a time not exceeding seven years, there to be kept to hard labour during all the time, or otherwise, to be transported to some of his majesty's plantations beyond the seas, for a term not exceeding seven years, and thereupon judgment shall be given, that the person convicted shall be committed or transported accordingly." Now, by this clause, there are two separate and distinct acts to be done; first, an order is to be made; and secondly, a judgment is to be given thereupon. In this case the order has been made, but no judgment has been given, and the question is, in what manner this Court can interfere under such extraordinary circumstances. If this had been an indictment at common law, there would have existed no difficulty in the case, because then the proceedings of the Court below might have been removed by certiorari into this Court, and we might have remedied the defect in them by pronouncing judgment here. But this being a conviction under a particular act of parliament, which prescribes a particular punishment, we are of opinion that the proper course for this Court to adopt, is to cause an entry to be made, that inasmuch as it appears to the Court that no judgment has been pronounced by the Court below, therefore we order that the record be remitted to the Court below, in order that that Court may pronounce judgment therein. An entry to this effect was accordingly made, and a procedendo awarded. |