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1, PLAINTIFFS.

1st. As between the original parties, and with reference to the interest of the plaintiff in the contract.

First, when the action is in form er contractu(1), and secondly, when it is in form ex delicto; and under each of those heads, we will examine, first, who are to be the plaintiffs, and secondly, who are to be the defendants.

1. IN ACTIONS IN FORM EX CONTRACTU.

The rules which direct who are to be the parties to an action in form ea contractu, whether as plaintiffs or defendants, are to be considered, first. as between the original parties to the contract; and secondly, where there has been a change of parties, interest, or liability. Under the first head. the rules may be considered with reference to the interest or liability of the parties as whether legally, or only beneficially interested, or acting merely as agents, or standing in the situation of joint tenants, tenants in common, partners, &c.; and in case of several contracting parties, who must or may join or be joined. Under the second head, the subject will be examined with relation to the instances of an assignment of interest or a change of credit; of survivorship of one of several; death of all; bankruptcy; in solvency; and marriage of one of the contracting parties. We will consider these rules, first, as they relate to the plaintiffs in an action.

In general, the action on a contract, whether express or implied, or whether by parol, or under seal, or of record, must be brought in the name of the party in whom the legal interest in such contract was vested (c), 2): and in general with his knowledge and concurrence, or, at least, a sufficient indemnity must be tendered before his name can properly be used by

(c) 1 East, 497; 8 T. R. 332; 1 Saund. 153, n. 1; 7 Mod. 116; 2 Saunders on Uses

and Trusts. 222; 2 T. R. 696; 7 T. R. 667 and see 2 Bing. 20.

(1) The following note was inserted, by Mr. Chitty, at this place, in the first edition of h ́s work: "A plaintiff frequently has an election to proceed, even for a breach of an express con tract, either in assumpsit or in case; and where the latter form of action is adopted, many of the rules as to the parties to the action do not apply. See Govett v. Radnilge, 3 East, 70. Bud Ee v. Willson, 6 T. R. 373. Samuel v. Judin, 6 East, 333, 335, and therefore I have considered the following rules, in their relation to the form of the action, rather than to the subject matter of it." In a note to the second American edition, Mr. Day observes, that, "The decision in Govett v. Radnige, has been overruled by two subsequent cases in the common pleas, Powel v. Layton, 2 Bos. & Pull. N. R. 365, and Max v. Roberts, 2 Bos. & Pull. N. R. 454, and by a very recent case in the King's Bench, Weall v. King, 12 East, 452. 3 Conn. 198. In Connecticut, declarations in tort, stating the injury to have been effected by means of a contract, have been sustained. Stoyell v. Westcott, 2 Day, 418. Bulkeley v. Storer, 2 Tay, 581." Wolcott r. -Canfield, 3 Conn. 194. Vide 2 Esp. Dig. 129.

(2) Commercial Bank r. French, 21 Pick. 489. Warden v. Burnham, 8 Vermont, 390. Frankem v. Trimble, 5 Burr. 520; Caruthers v. Wardlaw, Dudley (Geo.) 189. De Cor lova v. Atchison, 13 Texas, 372. Taylor v. Steamboat Robert Campbell, 20 Mis. (5 Bennett,) 254. The legal interest in a contract is in the person, to whom the promise is male, and from whom the consideration passes, and he is the person who must bring the action on such contract. Hall r. Huntoon, 17 Ver mont, 244; Lapham v. Green, 9 Vermont, 407; Weathers v. Ray,.4 Dana, 474. See Clarke v. M'Farland, 5 Dana, 45. And where the suit is not brought in the name of the party ostensibly contracting, the defendant will be entitled to make any defence, which he could have made, had the suit been in the name of the person with whom the contract was made. Lapham v. Green, 9 Vermont, 407. A parent is entitled to the earnings of his child, being a minor, where there is no agreement, either express or implied, that payment may be made to the child; and an action for the work, labor and services of such child, in such case must be brought in the name of the parent. Shate v. Dorr, 5 Wend. 204. But a special contract with a third person, authorizing him to employ and pay the child, will be a defense to an action brought by the father. The inten tion of the parent may also be inferred from circumstances, and where the circumstances of any particular case warrant the conclusion that it was understood that the child might receive his earnings, payment to such child will be good. Ib. 3 Cowen, 92; 2 Mass. 115; 8 Cowen, 84. A father may by agreement with his minor son relinquish to him the right he has to his services and the father will be precluded from suing for the services of such son, performed within the pe riod embraced by the agreement, although he has given notice to the party employing the son,

I. PLAIN

TIFFS.

party in

vested must

the party beneficially interested (d) (1). The courts of law will not in general notice mere equitable rights, as contradistinguished from the strict In general legal title and interest, so as to invest the equitable or merely beneficial claimant with the ability to adopt legal proceedings in his own name; al- who legal though the equitable right embrace the most extensive, or even the exclu- interest is sive interest in the benefit to be derived from the contract or subject mat- be the plainter of litigation. This rule could not be disregarded without destroying tiff. the fundamental distinction between Courts of law and Courts of equity, 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 harrassed 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. conditional 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 re

(d) Spicer v Todd, 2 Tyr. 172; 3 Chitty 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 ne-
cessity of preserving inviolate the distinction
between legal and equitable rights, in Bauer-
man v. Radenius, 7 T. R. 667.

not to pay his wages to him. Morse v. Welton, 6 Conn. 547. See U. S. r. Mertz, 2 Watts, 406; Gale v. Parrot, 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 twenty-one, 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 v. Emery, 7 Halst. 53; Wheelright r. Beers, 2 Hall, 391; Wolfe v. Washburn, 6 Cowen, 261; Barndollar v. Tate, 1 Serg & R. 160; Treat v. Stanton, 14 Conn. 445. Millard v. Baldwin, 3 Gray, 484.

(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 23; Millard v. Baldwin, 3 Gray, 484.

On an indenture of apprenticeship made by selectmen as overseers of the poor, but designat-
ing themselves as selectmen, an action may be brought by subsequent overscers of the poor.
Powers v. Ware, 2 Pick. 451. Vide Sandford v. Sandford,
Day, 559. In the case in 20
John. 74, the bond was given to the people of Niagara county," and the suit was brought

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TILES.

I. PLAIN- lease the demand (ƒ). In such case, A. is evidently a trustee, and the obligatory part of the instrument, and the acknowledgment of legal responsibility, are to him (f).

On deeds

It is an inflexible rule, that if a deed be inter partes, that is, on the face inter partes. 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 covenantee (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; it [*1] 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 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

(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.

(9) 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 with the liability of a party who ex-
ecutes the deed as a covenantor, although he
is not described as one of the parties to the
deed in the introductory part of it; see Carth.
76; Holt, 210, S. C.; Platt on Cov. 7, 8.
(h) 6 B. & C. 718.
(i) 6 M. & S. 75.

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 John. 73 Hornbeck v. Sleght, 12 John. 199; Hinkley v. Fowler, 15 Maine, 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 had become liable. Covenant may also be maintained on the condition of such bond in his own name. The People v. Holmes, 5 Wend

TIFFS,

case A. should be the plaintiff; for the terms of the express covenant 1. PLAINseem to invest him with legal interest () (1); and it is clear, that upon a covenant with two persons to pay the sum of money to one of them, On Deeds they take a joint legal interest, and must jointly sue upon the cove- Poll. nant().

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).

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 Contracts. 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 C. seems to be created by the stipulation 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

(k) 1 East, 497, 501. See Platt on Covenants, 513.

(7) 1 East, 496; 3 B. & C. 256.

(m) See 2 Lev. 74; 3 Keb. 94, 115, S. C.;

Lutw. 395; Com. Dig. Covenant, A. (1); 2
Inst. 673. See post, 11.

(a) Mich. Term, 1651, Starkey v. Mylne, 1
Rol. Abr. Action sur Cas, 32, pl. 13.

(1) Chaplain v. Canada, 8 Conn. 286; 4 Wend. 419. A. & B. gave a bond to C., conditioned to pay C.'s debts; the holler of a promissory note, made by C. before the date of the bond, brought an action of assumpsit, on the money counts, against A. & B., to recover the amount of the note, and it was held that the action could not be sustained. Johnson v. Foster, 12 Metcalf 167; Sanders v. Filley, 12 Pick. 554.

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 capaci ties, 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 v. Ragan, 2 Blackf. 39; Farmers' Bank v. Brown, 1 Harring. 330; Virginian v. Ruffins, Walker, 312; Felton v. Dickinson, 10 Mass. 287; Arnold v. Lyman, 17 Mass. 400; Arlington . Hinds, 1 Chip. 431; Hinkley v. Fowler, 15 Maine, 285; Brown v. O'Brien, 1 Richardson, 268; Warren Academy v. Starrett, 15 Maine, 443; Barker v. Bucklin, 2 Denio, 45; Roblins 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 right 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 Wend. 156. The party in interest in a contract resting in parol, may sue upon it. Lapham v. Green, 9 Vermont, 407: Story, Agency, sec. 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 the 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 . 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 con

TIFFS.

[ 5 ]

1. PLAN- 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 portion for her (0) (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 benefitted 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 nearness of relationship between the father and 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 (q), 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 defendant, the rector of a parish, by a written, certificate addressed to the bishop, 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

(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, recognised 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.

(p) Marchington v. Vernon, N. P. men tioned in 1 B. and P. 101, n.

(q) 1 B. and P. 102.

(r) Doug. 142, S. C.; Cowp. 437.

tracts 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, sec. 161. 1 Ar nold Ins. (Am ed.) 25, notes, 170, 171, notes. Chitty Contr. (9th Am ed.) 228, 230 [208] in notes; Huntington v. King, 7 Cush. 371, Higins v. Senior, 8 Mees & W. 834.

On a written order, made for a consideration, moving from the Eastern Railroad Company, to deliver p. operty to J. S., president of the Eastern Railroad Company, the company may sue in their own name. Eastern Railroad Co. v. Benedict, 5 Gray, 561. In this case Dewey, J. said; We may assume it to be quite clear and well supported by authority, that in the case of oral contracts, the principal may sue in his own name, upon a contract made with his agent. It is equally well settled that the same rule applies to cases of sales by written bills, or other memoranda made by the agent, using his own name, and disclosing no principal. Edwards v. Golding, 20 Vermont, 30; Hubbard v. Borden, 6 Wheaton, 79; Salmon Falls Manuf. Co. v. Goddard, 14 How. U. S. 454, 455; Potter v. Yale College, 8 Conn. 60."

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 Archeyden, 1 John. 139, was much like Dutton v. Pool, upon the authority of which it was decided. The defendant in the court below, Schemerhorn, 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 a 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.

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