I. riage. *The consequences of a mistake in the proper parties, in the case of baron and feme, are, that when a married woman might be joined in the action PLAINTIFFS. with her husband, but sues alone, the objection can only be pleaded in 8. Marabatement (1), and not in bar, though the husband might sustain a writ of error (e), and if she marry after writ, and before plea, her coverture must be pleaded in abatement, and cannot be given in evidence under the general issue (ƒ)(2). But when a feme improperly sues alone, having no legal right of action, she will be nonsuited (g); and if she improperly join in an action with her husband, who ought to sue alone, the defendant may demur (h), or the judgment will be arrested (i), or reversed on a writ of error (k). And if the husband sue alone, when the wife ought to be joined, either in her own right, or in autre droit, he will be nonsuited (); or if the objection appear on the record, it will be fatal in arrest of judgment or on error (m). II. WHO TO BE DEFENDANTS. II. DEFENDANTS. 1st. As be and with bility of the party. The action upon an express contract, whether it be by deed, or merely in writing, or by parol, must in general be brought against the party who tween the made it, either in person or by agent (n). And although in the case of a original deed inter partes, an individual not named as a party cannot sue thereon, parties, although it contain a covenant with him, and for his benefit (o), yet this rule reference does not protect from liability a party who executes such a deed containing to the liaa covenant by him, although he is not described as a party thereto (p). And a party who expressly contracts, and permits credit to be given to him, is liable, although he were not the strict legal owner of the property in respect of which the contract is made, nor beneficially interested. Thus the owner of a ship is prima facie liable for repairs necessarily done to it (q) (3), but where the legal title to a vessel remained for some time after the sale in the vendor, and during that time the captain, by the direction of the purchaser, ordered repairs, it was decided that the vendor was not liable for the amount (r) (4). So the mortgagee of a ship (e) 3 T. R. 631. (f) 6 T. R. 265; Bac. Abr. Abatement, G. It would be pleadable puis darrein continuance in abatement, if it occurred after the defendant had pleaded in chief to the declaration. See Tidd, 9th ed. 849 (2). (g) 4 T. R. 361. (h) 1 Salk. 114; 1 Hen. Bla. 108; 2 Wils. 424. (i) Cro. Jac. 644. (k) 2 Bla. Rep. 1236. K.; 1 M. & Sel. 180, 181. (m) 1 Stra. 229; Cro. Jac. 424. (n) 8 East, 12; 3 Esp. R. 26; 3 Campb. 354, 356. (0) Ante, 3. (p) Carth. 76; Holt, R. 210, S. C.; Platt on Cov. 7, 8. (2) 2 Campb. 339, 517; 4 B. & A. 352; Cowp. 636. See also 8 East, 10; 11 Id. 435; 13 Id. 238. (r) 8 East, 10. See 13 East, 238; 16 Id. (1) 1 Salk. 282; Bac. Abr. Bar. & Feme, 169; 2 Campb. 517. (1) Vide Newton v. Robinson, Tayl. 72. (4) Leonard v. Huntington, 15 Johns. 298; Thorn v. Hicks, 7 Cowen, 697; Cutler v. Thurlo, 20 Maine, 213; Harrington v. Fry, 2 Bingh. 179; M'Iver v. Humble, 16 East, 169; Cox v. Reid, 1 Carr. & P. 602; Dawe v. Hadlock, 4 Pick. 458; Portland Bank v. Stubbs, 6 Mass. 422; James v. Bixby, 11 Mass. 34; Muldon v. Whitlock, 1 Cowen, 290. Vide Wendover v. Hogeboom, 7 Johns. 308; Hussey . Allen, 6 Mass. 163. In the case last cited, neither the plaintiff nor the master had notice of the previous transfer. II. DEFEND ANTS. 1. Who legally liable. In cases where a contract can only is not liable for wages, or repairs where the party claiming the debt was employed by the mortgagor (s), or expressly gave him credit (t)(1). So if an executor trustee carry on trade as trustee for the benefit of the children of the testator, he will be personally liable to pay the debts, and may even be made a bankrupt in respect of them (u). In the case of an express contract, the agreement itself will, therefore, in general, remove all difficulty with regard to the person who should be sued upon it. But difficulties frequently occur in deciding who should be made the defendant in an action upon a promise created or implied by law from a particular state of facts. In this case it must be ascertained who is the parbe implied. ty subject to the legal liability; for he is the person who should be sued (x). A mere equitable or moral obligation to pay a demand is, in the absence of an express promise, insufficient to support an action (y) (2). And there are some instances in which even an express promise will give no additional force to mere equitable liability, as in the case of a promise, without any new consideration, to pay a legacy (z), or the share of an intestate's effects to which the plaintiff is entitled under the Statute of Distribution (a). In these cases, the subject-matter is more peculiarly within the province of the Courts of Equity, and a Court of Common (s) 3 Campb. 354. (t) 7 B. & C. 30; Ry. & M. N. P. C. (x) 2 Hen. Bla. 563; 1 Hen. Bla. 93. (y) See Chit. jun. on Con. 10. (1) The mortgagee of a vessel, although the register or enrolment may stand in his name, if he has not taken the actual possession and control of the vessel mortgaged, is not held liable for repairs or supplies furnished by order of the master, acting under the orders and authority of the mortgagor. Cutler v. Thurlo, 20 Maine, 213; Ring v. Franklin, 2 Hall, (N. Y.) 1; Colson v. Bondsey, 6 Greenl. 474; Winslow v. Tarbox, 18 Maine, 132; Brooks v. Bondsey, 17 Pick. 441; M'Carte v. Huntington, 15 Johns. 298; Lord v. Ferguson, 9 N. Hamp. 380; Birbeck v. Tucker, 2 Hall, (N. Y.) 121; Tucker v. Buffington, 15 Mass. 477; M'Intyre v. Scott, 8 Johns. 159; Champlin v. Butler, 18 Johns. 169; Philips v. Sedley, 1 Wash. C. C. 226.' But the mortgagee is liable for all supplies furnished after he has taken possession, although the plaintiff at the time he furnished the supplies was ignorant of the fact, that the defendant was mortgagee. Miln v. Spinola, 4 Hill, (N. Y.) 177; Champlin v. Butler, 18 Johns. 169. So where a bill of sale is unconditional, the purchaser is liable for supplies, though he has never taken possession of the vessel, and though neither the master, nor the merchant furnishing supplies, had any knowledge of the sale. Lord v. Ferguson, 9 N. Hamp. 380. In respect to the liability for repairs and supples, where the vessel is chartered, see Perry v. Osborne, 5 Pick. 423, where the court remarked that generally supplies for a ship are furnished on the credit of the master and owner; but where the ship is out of the employment of the owner, the charterer, whether under a parol or written contract, is held, and not the owner. See also to the same effect, Cutler v. Winsor, 6 Pick. 335; Thomas v. Hamilton, 12 Pick. 428; Tucker v. Buffington, 15 Mass. (Rand's ed.) 481 note (a); 3 Kent, (5th ed.) 136-139; Thompson v. Snow, 4 Greenl. 264; Hallet v. Col. Ins. Co. 8 Johns. 272; Emery v. Hersey, 4 Greenl. 407; Cutler v. Thurlo, 20 Maine, 217; Houston v. Darling, 16 Maine, 413; Winsor v. Cutts, 7 Greenl. 261. (2) See Mills v. Wyman, 3 Pick. 207; Andrews v. Ives, 3 Conn. 368; Dodge v. Adams, 19 Pick. 429; Parker v. Carter, 6 Munf. 273; M'Pherson v. Rees, 2 Pennsylv. 521; Glass v. Beach, 5 Vermt. 175; Barlow v. Smith, 4 Vermt. 144; Commissioners v. Perry, 5 Haw. 58; Turner v. Patridge. 3 Pennsylv. 172; Snevely v. Read, 9 Watts, 491; Stafford v. Bacon, 25 Wend. 384; S. C. 2 Hill, 353. A moral obligation is available as a consideration for an express promise, in those cases only, where a prior legal obligation has existed, which, by reason of some statute, or stubborn rule of law, cannot now be enforced. Cook v. Bradley, 7 Conn. 57. See Scouton v. Eislord, 7 Johns. 36; Erwin v. Saunders, 1 Cowen, 249; Shippey v. Henderson, 14 Johns. 178. Law cannot so effectually do justice between all parties; and therefore will not recognize even an express promise so as to allow an action to be brought thereon. II. DEFEND ANTS. 1. Who legally lia. The general rule is, that a cestui que trust cannot sue his trustee at ble. law (b). But if a trustee state an account, and admit a balance due from When or him to the cestui que trust, he may be sued at law (c). not against a trustee. Agents, A contract made by an agent, as such, is in law the contract of the prin- Against cipal; Qui facit per alium facit per se (1). The assent of the agent is the &c. assent of the principal; the former is the mere conduit or medium by which the contract is effected, and is not clothed with any legal or beneficial interest in it which can render him responsible upon the agreement (d), although in some instances he may sue thereon (e). The general rule therefore is, that when a person has contracted, in the capacity of an agent, and that circumstance is known at the time to the person with whom he contracts, such agent is not liable to an action for non-performance of the contract (ƒ), even for a deceitful warranty (g), if he had authority (2) from his principal to make the contract (h). For the same reasons, if an attor- [ 35 ] ney "for and on the behalf of his client, and as his agent," promise to pay money, he is not personally liable if he had authority from his client (i) (3). And where a trader, after an act of bankruptcy, employed an auctioneer to sell goods, who sent him the proceeds by the hands of the defendant, it (b) 1 Holt, N. P. C. 641. See 2 Moore, 240; 8 Taunt. 263, S. C.; Sand. on Uses, 222; 2 Bro. C. C. 265. See further and qualification of that rule, 1 Chitty's Gen. Pract. 6, 7, 8. (c) 1 Har. & Wol. 167. (d) 3 Chit. Com. Law, 104, 211; Paley, Prin. & Agent, 251. Who may be an agent, Co. Lit. 52 a. 15 East, 62, 66; Paley, Prin. & Agent. 246; (g) 3 P. Wms. 278, 279; 1 Bla. Rep. (i) 3 P. Wms. 277; 2 M. & Sel. 438. (1) If a note signed by A. individually, be declared on as "executed for and in behalf of B. by his agent A.," the variance will be fatal. Rossiter v. Marsh, 4 Conn. 196. So if such note be declared on as the act and deed of B. ib. (2) Hopkins v. Mehaffy, 11 S. & R. 128; Vide Carew v. Otis, 1 Johns. 418; 5 Ib. 255, n. ì.; Passmore v. Mott, 2 Binn. 201; Bethune v. Neilson, 2 Cai. 139; Mann v. Chandler, 9 Mass. 335; Dusenbury ». Ellis, 3 J. Cas. 70. Doty v. Wilson, 14 Johns. 378; Smith v. Ware, 13 Johns. 257. In Frear v. Hardenburgh, Johns. 272, it was held that there was neither a legal nor moral obligation on the owner of land to pay for work done on it by one who entered, without his consent, or any consent, or color of right. See 20 Johns. 28. Such a consideration will not support an assumpsit, ib. Dubois v. The Delaware and Hudson Canal Company, 4 Wend. 285. An agent renders himself personally liable when he makes a contract upon terms which he knows he has no authority to agree to, although the contract be made in the line of his business as agent. Meech v. Smith, 7 Wend. 315; Cunningham v. Soules, 7 Wend. 106. See No. 41 Amer. Jurist, 19, 20; Woodes v. Dennet, 9 N. Hamp. 55; Savage v. Rix, 9 N. Hamp. 263; Clark v. Foster, 8 Vermt. 90; Simons v. Heard, 53 Pick. 120; Newhall v. Dunlap, 3 Shepley, (Maine) 180; Feeter v. Heath, 11 Wend. 477; Chitty Cont. (6th Am. ed.) 227, notes (1) and (2). (3) An attorney is personally liable to a sheriff, and so, it would seem, to any other officer of the court, for his fees, as it is to be presumed that the credit was given to the attorney. Adams v. Hopkins, 5 Johns. 252; Ousterhout v. Day, 9 Johns. 114. II. DEFEND- 1. Who le- ble. Agents, &c. was decided that the assignees could not sue the latter for the money (). So where A., an auctioneer, being employed to sell an estate belonging to B.. entered into and signed an agreement with C. for the purchase, in his own name, as agent of B., and B. shortly afterwards signed it, and added, "I hereby sanction this agreement, and approve of A.'s having signed the same on my behalf," it was held A. was not personally liable (k). But if an agent covenant under seal for the act of another, though he describe himself in the deed as contracting for and on the part and behalf of such other person (7) (1); or if he accept or draw a bill of exchange generally and not as agent, he is personally liable (m) (2) unless in the case of an agent on behalf of government (n) (3). So where the defendant by a written agreement, expressed to be made by himself on behalf of A. B. of the one part, and the plaintiff, of the other part," stipulated that he the defendant would execute to the plaintiff a lease of certain premises, which, as it was proved, belonged to A. B., Best, C. J. held, that the defendant was personally liable; and he added, that there was no distinction between deeds and parol agreements in this respect (o). And where the solicitors of the assignees of a bankrupt, upon whose hands a distress had been made by the landlord, gave a written undertaking, stating that "they, as solicitors to the assignees, undertook to pay the rent, &c." they were held personally liable (p); and in general, where an agent enters into a written agreement as if he were the principal, and the credit is given to (j) 4 Taunt. 198; 3 Campb. 183; 9 Bingh. 378; but see 4 M. & Sel. 259. (k) 5 Moore, 270; 2 B. & B. 452, S. C.; and see 2 Taunt. 374, 387. (1) 5 East, 148. (n) 1 T. R. 674; Gow's Cas. N. P. 117; 3 Brod. & Bing. 275 to 286; 7 Moore, 91, 110, S. C. (0) 1 Ry. & Moo. 229; see 5 Moore, 278. (P) 3 B. & Ald. 47; see also 2 D. & R. (m) Stra. 995; 1 B. & P. 368; Sowerby 307; 1 B. & C. 160, S. C.; 1 Gow. 117; 1 v. Butcher, 2 Crom. & Mees. 368. Stark. 14. (1) Vide White v. Skinner, 13 Johns. 307; Tippets v. Walker, 4 Mass. 595; Cutter v. Whittemore, 10 Mass. 417; Meyer v. Barker, 6 Binn. 228; Sumner v. Williams, 8 Mass. 362; Mitchell v. Hazen, 4 Conn. 495; Belden v. Seymour, 8 Conn. 24; Duvall v. Craig, 2 Wheat. 45; Stone v. Wood, 7 Cowen, 453; Stinchfield . Little, 1 Greenl. 231; Magill v. Hinsdale, 6 Conn. 461; Copeland v. Mercantile Insurance Company, 6 Pick. 198; Key v. Farnham, 6 Har. & Johns, 418; Andrews v. Este, 2 Fairf. 267; N. Eng. Mar. Ins. Co. v. De Wolf, 8 Pick. 56; Evans v. Wells, 22 Wend. 234; Chitty Cont. (5th Amer. ed.) 229, and notes. (2) Or draw a bill of exchange generally, without stating any qualification of his responsibility as drawer, though the payees knew he was but an agent. Mayhew . Prince, 11 Mass. 54. The drawer of a note as guardian of another, was held personally liable. Thatcher . Dinsmore, 5 Mass. 299; Foster v. Fuller, 6 Mass. 58. A covenant by an executor, as executor, and not otherwise, was held not to bind him personally. Thayer v. Wendell, C. C. U. S. First Circ't 37. 1 Gallis, 37. (3) An agent contracting on behalf of government is not personally liable. Vide Bainbridge v. Downie, 6 Mass. 257; Jones v. Le Tombe, 3 Dall. 384. So, the Secretary at War, taking a lease of a building, in Washington, for the use of the war office, was held not to be liable under a covenant contained in the lease. Hodgson v. Dexter, 1 Cranch, 345. So, the president of a corporation, sealing a covenant, as president, and on behalf of the corporation. Hopkins v. Mehaffy, 11 Serg. & Rawle, 126; Randall v. Van Vechten, 19 Johns. 60. But a public officer may render himself liable by his express promise. Gill v. Brown, 12 Johns. 385. The Supreme Court of the State of New York have decided, that an agent of government, known as such, is personally liable on a contract made by him on account of government, unless it appear, as well that he contracted in his official capacity, and on account of government, as that the other party gave the credit, and intended to look to government, for compensation. Sheffield. Watson, 3 Caines, 69; Sed Vide Walker . Swartwout, 12 Johns. 444. Swift v. Hopkins, 13 Johns. 313. II. DEFEND ANTS. 1. Who le him, he is personally liable (q); but this liability must be collected from the instrument upon a reasonable exposition of the whole of its terms (r). So, if a person being an agent act as a principal, and do not disclose his principal, or declare that he acts as agent at the time of making a verbal gally liacontract, and the credit be given expressly to him, he will be personally re- ble. sponsible (8) (1). The master of a ship is in general "liable for necessaries [ 36 ] furnished abroad (t), or in this country, unless they were furnished Agents, upon the credit of the owners (u); and he or the owners may be sued upon the bill of lading, or generally, for the loss of goods, unless there has been an express contract which the owners (x) (2) and it seems that a policy broker alone can be sued for the premiums of insurance (y). Where an agent does not pursue in any degree the principal's authority (2); or so far exceeds it as to discharge the principal from responsibility for his acts (a); or where he acts under an authority, which he knows the principal has no right to give, as an agent selling property under a notice that it does not belong to his principal; he is personally responsible (b). There is a material distinction between an action against an agent for the recovery of damages for the non-performance of the contract, and an action to recover back a specific sum of money received by him; for when a contract has been rescinded, or a person has received money as agent of another who had no right thereto, and has not paid it over, an (?) 2 East, 142; 6 T. R. 176; 1 T. R. 675; 15 East, 62; 6 Taunt. 147; 1 Marsh. 500. (r) 5 Moore, 270; 5 Taunt. 374, 387. (s) 3 Campb. 317; 15 East, 63, 66; 12. Ves. 352.; Payl. 246; Peake, C. N. P. 120; i T. R. 181; 7 T. R. 359; Burr. 1921. (t) Cowp. 639; 7 T. R. 312. (u) Abbott on Shipping, 1st edit. 95. (1) Allen v, Rostain, 11 Serg. & Rawle, 375. If the seller of goods, knowing at the time that the buyer, though dealing with him in his own name, is in truth the agent of another, elect to give the credit to such agent, he cannot afterwards recover the value against the known principal; but if the principal be not known at the time of the purchase made by the agent, it seems that when discovered, the principal or the agent may be sued at the election of the seller; unless where by the usage of trade, the credit is understood to be confined to the agent so dealing; as particularly in the case of principals residing abroad. Patterson v. Gaudasequi, 15 East, 62. Et Vide Mauri v. Heffernan, 13 Johns. 58. Jaques v. Todd, 3 Wend. 83. Lincoln v. Battelle. 6 Ib. 475. Pentz v. Stanton, 10 Ib. 271. Tradesman's Bank v. Astor, 11 Wend. 87. Jeffrey v. Bigelow, 13 Ib. 518. (2) The plaintiff has his election to sue either the one or the other, unless there were a special promise from either, in which case the other is discharged. Garnham v. Bennett, Str. 816. Farmer v. Davies, 1 Term. 108. Unless there is some special contract, the master is in every case personally responsible upon all the contracts, which he makes in reference to the employment, repairs, supplies and navigation of the ship. See Watkins . Laughton, 8 Johns. 164; Elliot v. Russell, 10 Johns. 1; Dakey v. Russell, 18 Martin. The master is liable for repairs and necessaries ordered by him, whether at home or abroad. James v. Bixby, 11 Mass. 34; Marquand v. Webb, 16 Johns. 89; Leonard v. Huntington, 15 Johns. 298. If there is a special promise of the master taken and relied upon, the owner is not liable; and on the other hand, if there is a special promise of the owners, the master is not liable. Hussey v. Allen, 6 Mass. 163; Chapman v. Durant, 10 Mass. 47; James v. Bixby, 11 Mass. 34; Wainwright v. Crawford, 3 Yeates, 131; Farrell v. M'Clea, 1 Dall. 396; Schermerhorn v. Lomas, 7 Johns. 311; Marquand v. Webb, 16 Johns. 89; Muldon . Whitlock, 1 Cowen, 29; Thorn v. Hicks, 7 Cowen, 597; Nickerson v. Monsoon, 5 Law Rep. 416. &c. |