#### Bradford Howland *et al. versus*Timothy G. Coffin.

The assignee of a lessor of a term for years may maintain an action of debt for the rent against the assignee of the lessee.

In such an action, where it appeared, that upon the execution of the lease, the lessee gave several promissory notes, amounting in the whole to the rent reserved, and payable respectively as the rents would become due, and which were stated in the lease to have been given as collateral security, it was held to be a proper question for the jury to determine, whether the notes were intended by the parties as a payment a* tb’ rent.

This was an action of debt for rent from December 6th, 1824, to June 6th, 1825. Trial upon the general issue, before *Wilde*J.

*54It was proved that one Randolph formerly occupied the premises described in the declaration, holding the same under a lease from one Brownell. The defendant purchased all the right of Randolph, the same being sold on execution, and the plaintiffs, before the expirado' of the term created by the lease, purchased all the right *or*rownell. At the time when the lease was executed, P ..ndolph gave Brownell twenty-four promissory notes, amounting in the-whole to the rents reserved, and payable respectively as the payments became due by virtue of the lease. In the deed of Brownell to the plaintiffs is the following clause, — “ By which said Brownell let the premises aforesaid to the said Randolph for the term of twelve years from the 3d of December, 1821, he paying as rent therefor the sum of 75 dollars yearly ; for which payments the said Randolph gave the said Brownell twenty-four notes as collateral security, twenty-three of which notes are herewith delivered to said Bradford and Daniel ” (the plaintiffs) ; and it appeared that the notes were delivered to the plaintiffs, but there was no evidence of payment. The lease contained a clause of re-entry for non-payment of the rent.

The defendant contended, that the notes were received in payment of the rents reserved by the lease, and introduced evidence to show that they were so received at the time when the lease was executed.

He also contended, that there was no privity of contract between the plaintiffs and the defendant, and that their only rem edy, if any they had, was a. right of re-entry for condition broken.

The jury were instructed, that the notes were not necessarily to be considered as payment ; but that if at the time of the execution of the lease they were so taken and intended, and the jurj' should be satisfied of the fact, from the testimony or the circumstances of the case, they should find for the defendant, otherwise, for the plaintiffs.

The jury returned a verdict for the plaintiffs. The defendant excepted to the above instructions and moved for a new .trial.

*Coffin, pro se,*

cited *Kearslake*v. *Morgan,*5 T. R. 518, to show that giving the notes was a payment of the rent.

*55*L. Williams*and *Warren, contra,*

cited, on the point, that the assignee of the residue of the term was liable in an action of debt for the rent, *Montague*v. *Gay,*17 Mass. R. 439 ; Bac. Abr. *Rent, H;*Com. Dig. *Rent, B*5 ; *Farley*v. *Thompson,*15 Mass, R. 18 ; *Lekeux*v. *Nash,*2 Str. 1221 ; *Auriel*v. *Mills,*4 T. R. 94 ; *Stevenson*v. *Lombard,*2 East, 575 ; *Holford*v. Hatch, 1 Doug. 183, and *Palmer*v. *Edwards, ivid, in notis :*— and on the point, that the assignee of the reversion may recover of the assignee of the term, *Turner*v. *Richardson, 7*East, 335 : 1 Wms’s Saund. 241, note 6.

Parker C. J.

afterward drew up the opinion of the Court. 1 A . It was properly left to the jury to consider, whether the promissory notes given by Randolph were intended by the parties to the lease as payment of the rent. It does not appear that they were negotiable ; so that they were not *prima facie*evidence of payment.1 *And in the lease itself they are declared to have been received only as collateral security for the rent, leaving the remedy of Brownell and his assigns open upon the lease, so that he might have entered, or had his action on the covenant.

The verdict establishes the point, that the notes were nc* given or received in payment; so that the only doubt respecting the defendant’s liability rests on the plaintiffs’ right, under the circumstances, to maintain an action of debt for the rent due. In regard to this point the law seems to be well settled, that the assignee of the lessee is liable to the assignee of the lessor in an action of debt, for the time he holds ; for though there is no privity of contract, there is a privity of estate which creates a debt for the rent. The cases cited by the plaintiffs' counsel fully establish this point, and no case has been cited by the defendant to the contrary. 2 Wms’s Saund. 303, note 5, and 4 Dane’s Abr. *r.*117, *art.*4, are additional authorities.2

*Judgment according to verdict.*

1

 See *Dutton*v. *Kendrick,*2 Fairfield, 381 ; Chitty on Contr. (4th Am. ed.) 694 *b,*note 1 ; *Whitcomb*v. *Williams, 4*Pick. (2d ed.) 230, note 1.

2

 See *Howland*v. *Coffin,*12 Pick. 125; *Daniels*v. *Richardson,*22 Pick. 565; *Dartmouth College*v. *Clough,*8 N. Hamp. R. 28.