I. PLAIN TIFFS. party in est is vest the party beneficially interested (d) (1). The courts of law will not in general notice mere equitable rights, as contradistinguished from the strict legal title and interest, so as to invest the equitable or merely beneficial In general claimant with the ability to adopt legal, proceedings in his own name; al whom lethough the equitable right embrace the most extensive, or even the exclu- gal intersive interest in the benefit to be derived from the contract or subject-mat- ed must be ter of litigation. This rule could not be disregarded without destroying the plainthe fundamental distinction between Courts of law and Courts of equity, tiff. with regard to the remedy peculiar to each jurisdiction; if the cestui que trust were permitted to sue at law in his own name, the benefits and protection intended to result from the intervention of a trustee, clothed with a legal title, might be lost, and the advantages arising from giving Courts of equity exclusive control over matters of trust would be defeated (e). [ *3 ] Besides, it would be impossible, consistently with the common principles of jurisprudence, to exclude the power of the trustee to sue in respect of his legal right; and it would be highly mischievous and unjust to permit the defendant to be harassed by two actions upon the same contract or transaction. The right of action at law has therefore been wisely vested solely in the party having the strict legal title and interest, in exclusion of the mere equitable claim (2). If a bond be given to A. conditioned for the payment of money to him On Bonds. for the use or benefit of B., or conditioned to pay the money to B., the action must be brought in the name of A. (3), and B. cannot sue for or (d) Spicer v. Todd, 2 Tyr. Rep. 172; 3 Chitty's Gen. Prac. 127. (e) See the observations of Lord Kenyon, as to the legal title alone being recognized in an action of ejectment, in Goodtitle v. Jones, 7 T. R. 50; and his observations as to the he has given notice to the party employing the son, not to pay his wages to him. Morse v. Welton, 6 Conn. 547. See U. S. v. Mertz, 2 Watts, 406; Gale v. Parrott, 1 N. Hamp. 28; Eubanks v. Peak, 2 Bailey, 497; Chase v. Smith, 5 Vermont, 556. Where a minor son makes a contract for his services on his own account, and his father knows of it, and makes no objection, there is an implied assent, that the son shall have his earnings; so that unless there is a design to defraud the father's creditors, the earnings will belong to the son, Whiting v. Earle, 3 Pick. 201. See Burlinghame v. Burlinghame, 7 Cowen, 92; Keese v. Sprague, 3 Greenl. 77; Manchester v. Smith, 12 Pick. 115. A minor son authorized by his father to go out to service and receive his earnings to his own use, may sustain an action for his wages against his employer, although such authority was not made known to the employer at the time when the minor entered into his service. And if in such case no express contract be made with the employer, the law will imply a promise by him to the minor, and not to the father. Corey v. Corey, 19 Pick. 29. Although the father is entitled to the services of his children till the age of 21, yet he may waive that right. He may emancipate his child; or the child may, by the father's consent, be entitled to his own services. Ib. Emancipation of a child is never to be presumed, but must always be proved. Sumner v. Sebec, 3 Greenl. 223. (1) The indorsee of a witnessed negotiable note cannot sustain an action for his own use in the name of the payee against his consent, in order to avoid the bar of the Statute of limitations. Mosher v. Allen, 16 Mass. 451. But he may with his consent or if he makes no objection, Hodges v. Holland, 19 Pick. 43. (2) See Montague v. Smith, 13 Mass. 404, 405; Howe v. Howe, 1 N. Hamp. 49; Smith • Emery, 7 Halst. 53; Wheelwright v. Beers, 2 Hale, 391; Wolfe v. Washburn, 6 Cow. 261 Barndollar v. Tate, 1 Serg. & R. 160; Treat v. Stanton, 14 Conn. 445. (3) An action on a bond must be brought in the name of the obligee, although the condition of it is for the benefit or support of a third person. Saunders v. Filley, 12 Pick. 554 ; Watson v. Cambridge, 15 Mass. 286; Montague v. Smith, 13 Mass. 396, 404. See Bird v. Washburn, 10 Pick. 223. On an indenture of apprenticeship made by selectmen as overseers of the poor, but designating themselves as selectmen, an action may be brought by subsequent overseers TIFFS. I. PLAIN- release the demand (f). In such case, A. is evidently a trustee, and the obligatory part of the instrument, and the acknowledgment of legal responsibility, are to him (ƒ). On deeds inter par tes. It is an inflexible rule, that if a deed be inter partes, that is, on the face of it expressly describe and denote who are parties to it, (as "between A. of the first part and B. of the second part,") C., if not expressly named as a party, cannot sue thereon, although the contract purport to have been made for his sole advantage, and contain an express covenant with him to perform an act for his benefit (g) (1); in such a case, C. is a stranger to the deed, and violence would be done to the expressed intention of the parties, were he to be allowed to sustain an action in his own name (g); the form of the instrument, and the reciprocity of obligation between the parties to it, created by the express terms of the deed, negative and destroy any presumption that the contract was with him; and in such case, the right of suit is constituted, and must be governed, by the deed; and this rule applies, although the covenant be with the third party, C., (whose benefit is the declared object of the deed), and a person who is a party to the deed jointly (g). Even in such case, C. cannot join with the other convenantee (h). And where a deed of composition was made between a debtor of the first part, his surety of the second part, and "the several other persons whose hands and seals are set and subscribed hereto, being creditors, &c. of the third part," and A. one of the members of a firm to which the debtor owed money, set his own seal only to the deed; [ 4 ] it was held, that A. only, and not the firm should sue on the covenant to pay the composition, although A. subscribed the deed as for himself and partners for the partners did not become parties and privies to the deed, as their seals were not affixed thereto (i). If a deed-poll, not being a deed inter partes, contain a covenant with (f) 2 Inst. 673; 1 Lev. 235; 3 Id. 139, 140; 3 B. & P. 149, n. (a); 7 East, 148; 1 M. & S. 575; 6 Vin. Abr. Covenant, 374; 1 East, 501. (g) Per Tindal, C. J. in Bushell v. Beavan, 1 Bing. N. C. 120; 2 Inst. 673; 2 Rol. Abr. Faits, F. 1; 3 M. & S. 308, 322; 5 Moore, 23; 2 B. & B. 333; S. C. 5 B. & C. 355. See 2 Preston on Conveyancing, 184; Platt on Covenants, 7, 8. This rule does not interfere of the poor. Powers v. Ware, 2 Pick. 451. Vide Sandford v. Sandford. 2 Day, 559. In the case in 20 Johns, 74, the bond was given to the "people of Niagara county," and the suit was brought in a justice's court, in the name of the party aggrieved, who there recovered. The judgment was reversed in the Supreme Court, on the ground that there was no evidence of any breach of the condition. The court also say that the bond is not in the form contemplated by the statute; that it should have been given to the people of the State of New York, and not to the people of Niagara county. In the subsequent case of Lawton v. Erwin, 9 Wend. 233, the question was distinctly presented, whether a party interested in the condition of a constable's bond can maintain debt upon it in his own name, where the bond is given to the people; Held, that the action should be covenant on the condition, in the name of the party, or debt in the name of the people. (1) Strohecker v. Grant, 16 Serg. & Rawle, 237. Vide Hornbeck v. Westbrook, 9 Johns. 73. Hornbeck v. Sleght, 12 Johns. 199; Hinkley v. Fowler, 15 Maine, (3 Shepley,) 285; Robins v. Ayres, 10 Missouri, 538. The general principle is, that no other person than the obligee in the bond can be the nominal plaintiff. In the case of a security required to be given by a constable before entering upon the duties of his office in form of a penal bond to the people, debt may be maintained on such bond by any person to whom the constable has become liable. Covenant may also be maintained on the condition of such bond in his own name. The People v. Holmes, 5 Wend. 191. I. PLAIN TIFFS. Poll. A. to pay B. a sum of money, it may be doubtful whether B. could sue in his own name; the covenant being with A. though for the benefit of another, and the contract being under seal, it would appear that in such on Deeds case A. should be the plaintiff; for the terms of the express covenant seem to invest him with legal interest (k) (1); and it is clear, that upon a covenant with two persons to pay the sum of money to one of them, they take a joint legal interest, and must jointly sue upon the covenant (). If, however, the covenant in a deed-poll be generally "to pay B.," or be expressly with him, to pay the money to him, there appears to be no difficulty in his maintaining an action in his own name, although he did not execute the deed, and were in all other respects a stranger to it (m). Contracts. The rule upon this subject appears to be materially influenced or affect- On simple ed by the nature of the instrument upon which the contract arises. If the instrument be not under seal, it seems to be a general principle, that the party, for whose sole benefit it is evidently made, may sue thereon in his own name, although the engagement be not directly to or with him (2). Thus, if A. give goods to B. of the value of £80, on condition that he pay £20 to C., if B. do not pay the money, C. may have an action against him, and declare that he was indebted to him in £20, for goods of the value of £80, given to him by A. on condition that he should pay £20 to C.; for when the goods were delivered to B. upon this condition the £20 became a debt to C. (n). An express privity of contract between A. and (*) 1 East, 497, 501. See Platt on Cove- Lutw. 395; Com. Dig. Covenant, A. (1); (1) 1 East, 496; 3 B. & C. 256. (1) Chaplin v. Canada, 8 Conn. 286. 4 Wend. 419. It must undoubtedly appear that the covenant which is alleged to have been broken, was made for the benefit of the person bringing the action. He must in some manner be pointed out and designated in the instrument; but it is not necessary that his name should in terms be used. A familiar illustration of this is to be found in the case of a covenant, with a man and his heirs or his executors. There the names of his heirs or the executors do not appear in the deed; but still they can sue upon the covenant, if broken. So, where the defendants covenanted to pay to each and every person, such sum or sums of money as the constable should become hable for on account of any execution which might be delivered to him; Held, that covenant may be sustained by a plaintiff in an execution delivered to such constable for collection, and for the payment of which the constable had become liable; he may claim the benefit of such covenant by proper averments in his declaration, although he is not named in the instrument. Fellows v. Gilman, 4 Wend. 414. Where A. covenanted with the rector, wardens and vestry, to pay rent to the rector or wardens; Held, that neither separately, nor could both the rector and wardens jointly, maintain a suit for the rent; but the vestry should also be joined with the rector and wardens. The principle is, that the action should be sued in the name of the parties with whom the covenant was made. Montague v. Smith, 13 Mass. 405. Where all the members of a corporation entered into covenant for themselves and heirs, that the corporation should do certain acts; Held, that all were holden in their individual capacities, and parties to the covenant. Tileston v. Newell, 13 Mass. 406. (2) United States v. Kennan, Peters C. C. 169; Strohecker v. Grant, 16 Serg. & R. 241; Harper o. Ragan, 2 Blackf. 39; Farmers' Bank v. Brown, 1 Harrington, 330; Virginian v. Ruffins, Walker, 312; Felton v. Dickinson, 10 Mass. 287; Arnold v. Lyman, 17 Mass. 400; Arlington v. Hinds, 1 Chip. 431; Hinkley v. Fowler, 15 Maine, (3 Shepley,) 285; Brown v. O'Brien, 1 Richardson, 268; Warren Academy v. Starrett, 15 Maine, (3 Shepley,) 443. Barker v. Bucklin, 2 Denio, 45; Robbins v. Ayres, 10 Missouri, 538. See the principle stated, Potter v. Yale College, 8 Conn. 60. Where an agreement is made with an agent for the sole and exclusive benefit of his principal, the latter has the legal interest and the night of action; but if the agent have a special property and personal interest in an agreement made with him, his is the legal interest and right of action. Sailly v. Cleaveland, 10 Wendell, 156. The party in interest in a contract resting in parol, may sue upon it. Lap TIFFS. I. PLAIN C. seems to be created by the stipulations of the parties, in a case of this nature. A father was seised in fee of lands, and was about to cut timber therefrom to raise a portion for his daughter; the defendant, being his son and heir, verbally promised the father, in consideration that he would forbear to fell the timber, to pay the daughter this portion; the Court of King's Bench held, that the daughter might sue the son for the recovery of the money, although the consideration moved from the father to the son; the contract having been made for her benefit, the object being to secure a [5] portion for her (o) (1). This decision was affirmed upon a writ of error in the Exchequer Chamber. This appears to be a strong authority to support the general rule, that the party to be benefited by a contract, not under seal, may sue thereon, although the promise be not made to him. The Court attached some weight to the nearness of relationship between the father and the daughter; but this does not appear to be a circumstance which can render the case of less utility and importance, as affording a general rule upon this subject; and Mr. Justice Buller is reported to have remarked (p), that if one person make a promise to another for the benefit of a third, the latter may maintain an action upon it. And in a subsequent case (1), Eyre, C. J. said "as to the case of a promise to A. for the benefit of B. and an action brought by B., there the promise must be laid as having been made to B., and the promise actually made to A. may be given in evidence to support the declaration." In Martin v. Hind (r), the (0) Dutton v. Poole, Mich. 29 Car. 2; 1 Ventr. 318, 332, S. C. in 2 Lev. 210; Sir T. Raym. 302, and Sir T. Jones, 102, recognized by Lord Mansfield in Cowp. 443, and Mr. J. Burrough in 5 Moore, 31, 32; 2 B. & B. 337, S. C. See Bul. N. P. 133 a. (1) 1 B. & P. 102. (r) Dougl. 142, S. C.; Cowp. 437. ham v. Green, 9 Vermont, 407; Story, Agency, § 418, et seq.; Pitts v. Mower, 18 Maine, 361; Edmond v. Caldwell, 15 ib. 340; Higdon v. Thomas, 1 Harr. & Gill. 153; White v. Owen, 12 Vermont, 361; Felton v. Dickinson, 10 Mass. 287; Cabot v. Haskin, 3 Pick. 83. In the Case of United States v. Parmele, 1 Paine, C. C. 252, it was held, that no action will lie in the name of the principal on a written contract made by his agent in his own name, although the defendant may have known the agent's character. See Clarke v. Wilson, 3 Wash. C. C. 560. Newcomb v. Clark, 1 Denio, 226. This, however, is not universally true, as appears in the case of factors making written contracts in their own names for the purchase or sale of goods for their principals. So in cases of agents, procuring policies of insurance in their own names, for the benefit of their principals, and in other cases, which will be found commented on in Story, Agency, § 161. 1 Arnould, Ins. (Am. ed.) 25, notes, 170, 171, notes. An action, on a promise to the mayor and aldermen of a city to pay for a license of a theatre, is rightly brought in the name of the city. Boston v. Schaffer, 9 Pick. 415. (1) The case of Schermerhorn v. Van Aerheyden, 1 John. 139, was much like Dutton v. Pool, upon the authority of which it was decided. The defendant in the court below, Schermerhorn, applied to his father for an assignment of his property, which the father gave the son, the defendant promising to purchase for his sister, the plaintiff's wife, a cherry desk. The court said, where one person makes a promise to another for the benefit of a third, that third person may maintain an action on such promise. This case has ever since been considered as correctly decided, and the principle à sound one. It was accordingly decided, where a collector of the customs put certain property seized by him into the hands of a third person, and took a promise for its delivery on demand to the marshal of the district, or to the deputy of such marshal, that the marshal having no interest in the property, and the collector having an interest in it, being the contracting party and furnishing the consideration, the suit on the contract must be brought in the name of the collector. Sailly v. Cleaveland, 10 Wend. 156. In all the cases where a third person has been permitted to sue on such a promise, such person had the legal interest. In M Menomy v. Ferrers, 3 John. 71, it was held that an order to pay to Roosevelt was an assignment of the amount due on the securities mentioned, and therefore the drawers of the order had no interest and could not prosecute. TIFFS. defendant, the rector of a parish, by a written certificate addressed to the 1. PLAINbishop, appointed the plaintiff his curate, and signified that he promised to pay the plaintiff a yearly stipend; it was held, that the plaintiff might sue for the salary (r). This case proceeded, however, upon the ground that the contract was entirely with the curate, that there was no promise to the bishop, and that the certificate was a mere assurance or information to him of a matter of fact, and the consideration was entirely between the plaintiff and defendant. The case of Carnegie v. Waugh (8), strongly shows, that a written or verbal promise to A. for the benefit of B. will support an action in the name of the latter (1); and the Chief Justice appeared to have been of opinion in that case, that the rule that a third person cannot take advantage of a deed inter partes, could not be extended to contracts not under seal (2). And an action may be maintained by the several partners of a firm upon a guarantee addressed and apparently given to one of them, if there be evidence that it was given for the benefit of all (t). There is, in the case of bills of exchange and promissory notes, an option Exception of plaintiff that might be considered an exception to the general peremp- in case of tory rule, that the right of suing can only be in one person, or set of persons, viz. that a party to a bill may, by arrangement between the parties, be the plaintiff, although the bill at the time be in the rightful possession of another party to the bill (u) (3). bills of exchange. *The action against a carrier for loss of goods sent by a vendor to a ven- [ 6 ] dee, must in general be brought in the name of the latter, and not of the Against consignor; because the law implies that by the delivery to the carrier, the carriers. goods became the property of the consignee, and at his risk (subject, of course, to the unpaid vendor's right of stoppage in transitu) (x). As the delivery to the carrier by the consignor presumptively vests the property in the goods in the consignee, it is an inference of law, that the contract for the safe carriage is between the carrier and consignee, and consequently the latter has the legal right of action (4); and this rule obtains, although the consignor paid the carrier for the conveyance of the goods, and the consignee gave no express directions that the goods should be sent by the particular carrier selected by the vendor (y). In these cases it is, however, only an assumption of law that the goods vested in the vendee and were at his risk upon the delivery to the carrier; and if by virtue of an agreement between the vendor and vendee, the goods did not become the property of the latter, and he was not at any risk with regard to the goods until they actually reached him, the consignor should be the plaintiff. But in general the property vests in the consignee by the mere de (7) Ante, n. r. (s) 2 D. & R. 277. See 4 B. & C. 664; 3 B. & A, 280, 281. The decision in Crow. v. Rogers, 1 Stra. 592, is perhaps hardly to be reconciled with this doctrine. The plaintiff declared, that Hardy, being indebted to the plaintiff in 707., it was agreed between Hardy and the defendant, that the defendant should pay the money to the plaintiff, and that Hardy should make the defendant a title to a house, -that Hardy was ready to do so, and, in consideration thereof, the defendant promised to (1) Blymire v. Boistle, 6 Watts, 182. (2) But see Owings v. Owings, 1 Har. & Gill, 484. (3) Pearce v. Austin, 4 Whart. 489, and the cases cited in the opinion of the Court. |