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pensable, to make the assignor holding the legal title a party to the suit, as well as the assignee, who is beneficially interested. (e) We shall at present consider the above rule in connexion with specialties only, and to the instances of personal covenants just considered, may be added that of a bond conditioned for the payment of money, on which the obligee alone can sue ;(g) though forbearance for a given time, on the part of the assignee of a bond, to sue the obligor in the obligee's name is a good consideration for a promise, by the obligor, to pay or to give a warrant of attorney for the amount at the expiration of the time agreed on.(h) However, the right of suing in his own name has been conferred, by statute, on the assignee of a bail bond ;(i) though such a bond, given by a party attached for not putting in an answer in Chancery, is not within the statute.(k) So, a replevin bond (unless perhaps when it contains a condition to indemnify the sheriff(l)) may be assigned to the avowant and party making cognizance, either jointly or

separately ;(m) and *the assignee of an India bond may sue thereon

[*12 ] in his own name.(n)

15. So, it has been decided that the assignee of an Irish judgment by cognovit, may sue in this country as well as in Ireland, in his own name ;(0) that the assignee of a respondentia bond may maintain assumpsit for money had and received against the obligor, the latter having beforehand engaged, by an indorsement on the bond, to pay the same to any assignee,(p) though clearly an action could not have been maintained on the bond; and that, if the members of a corporate body be ousted, but the corporation be subsequently revived, such corporation, when revived, may sue on a bond given to it during its previous existence ;(9) but this latter case is no exception to the general rule, the old corporation not having been totally dissolved and 'annihilated.(r) 16. We shall next consider who is the proper party to sue on simple con

tracts, written or verbal; and on *these it appears a settled rule that [*13]

should be made the plaintiff from whom the considera

that party

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(e) Story, Eq. Pl. ss. 153, 154.

(g) 2 Bla. Com. 442; Bac. Ab. Obligations, (A); Wake v. Tinkler, 16 East, 36; but the assignee of a Scotch bond may maintain assumpsit here in his own name: Innes v. Dunlop, 8 T. R. 595.

(h) Morton v. Burn, 7 A. & E. 19,a and Forth v. Stanton, 1 Wms. Saund. 210 n. (1), where the cases are collected. (i) 4 Ann. c. 16, s. 20.

(k) Meller v. Palfreyman, 4 B. &. Ad. 146.6 (1) Meyers v. Lockwood, 11 Law Journ., N. S., Q. B. 47.

(m) 11 Geo. 2, c. 19, s. 23; Phillips v. Price, 3 M. & S. 180 ; Dias v. Freeman, 5 T. R. 195; Archer v. Dudley, 1 B. & P. 381, n. A replevin bond may be taken and assigned by one of the sheriffs of London in his own name only. Thompson v. Farden, 1 Scott, N. R. 275.

(n) 51 Geo. 3, c. 64, s. 4. As to an India certificate, Ex parte Thomson, 16 Ves. jun. 443.

(0) O'Callaghan v. Marchioness of Thomond, 3 Taunt. 82. But the Irish statutes 9 Geo. 2, and 25 Geo. 2, which permit the conusees of judgments to assign them, and the assigneees to sue in their own names, are confined to judgments by cognovit. Id.

(p) Fenner v. Meares, 2 W. Bla. 1269, recognised by Buller, J., in Master v. Miller, 4 T. R. 341, 342; and by Wilson, J., Israel v. Douglas, i H. Bla. 243. But see per Lord Kenyon, C. J., Johnson v. Collings, 1 East, 104; and see 14 East, 587, n. (a). ·

(9) Mayor of Colchester v. Seaber, 3 Burr. 1866. (r) Per Lord Mansfield, C. J., 3 Burr. 1871.

• Eng. Com. Law Reps. 34. "Id. 24.

tion actually moved ;(8) a sufficient legal consideration being defined to be “ any act of the plaintiff from which the defendant derives a benefit or advantage, or any labour, detriment, or inconvenience sustained by the plaintiff, however small the benefit or inconvenience may be, if such act is performed or such inconvenience suffered by the plaintiff, with the consent, either express or implied, of the defendant."(t) “ Consideration,” according to Mr. Justice Patteson, (u) means something which is of some value in the eye of the law, moving from the plaintiff. It may be some benefit to the plaintiff, or some detriment to the defendant; but, at all events, it must be moving from the plaintiff.” It is moreover necessary to ascertain whether, under the particular circumstances, the consideration moved from the party in question as principal or as agent merely; for though the law requires in all cases a consideration moving from the plaintiff, yet it frequently happens that such a consideration is not shewn as moving directly from him, but through the agency and intervention of some other party ;(x) and, as we shall hereafter see, the principal must in general sue, and not the agent.(y)

*17. The following cases will serve to illustrate the preceding remarks:—Where plaintiff stipulated to discharge A. from a por

[*14] tion of a debt due to himself, and permit B. to stand in his place as to that portion, defendant stipulating in return that B. should give plaintiff a promissory note; the consideration moving from plaintiff, being an undertaking detrimental to him, was held sufficient to sustain the promise by defendant.(z) In like manner, where certain money was due to the plaintiffs, who were attorneys, on their own account, and certain other money was due to A. B., their client, and thereupon, in consideration of forbearance the defendant undertook that the money so due should be paid, the plaintiffs were held to be sufficiently interested in the recovery of the sum due to A. B., to sue on the defendant's undertaking in their own names ; they having induced their client to advance the money, having sued for it in her name, and then having stayed their proceedings on the defendant's promise to pay them the money. In this case, moreover, the client would have been unable to recover as against the defendant, except by suing in the names of her attorneys, with whom the agreement was entered into, and who would of course hold the amount when recovered as trustees for her.(a)

*17a. Where B., the country attorney of A., sent a sum of money to the defendants, who were his London agents, to be paid to C.



(8) Crow y. Rogers, 1 Stra. 592 ; Price v. Easton, 4 B. & Ad. 433; Lilly v. Hays, 5 A. & E.548; Bourne v. Mason, 1 Ventr. 6; see Galloway v. Jackson, 3 Scott, N. R., 753.763.

(t) 1 Selw. N. P. 10th ed. 41; Kayne v. Dutton, 8 Scott, N. R. 495; Broom's Legal Maxims, 336, et seq.

(u) Thomas v. Thomas, 2 Q. B. 859.1 (2) Per Patteson, J., Lilly v. Hays, 5 A. & E. 550 ;e see Clark v. Dignam, 3 M. & W. 478.

(4) Post, s. 54; see the dicta per Buller, J., Marchington v. Vernon, 1 B. & P. 101, n. (c); Per Eyre, C. J., The Feltmakers' Company v. Davis, 1 B. & P. 102 ; Per Holt, C., J., Yard v. Eland, 1 Ld. Raym. 358; which seem to refer to the case of a promise to an agent for the benefit of a third party; Chitt. Contr. 3rd ed. 54, n. (2).

(2) Peate v. Dicken, 1 Cr. M. & R. 422. (a) Harper v. Williams, 4 Q. B. 219.

Eng. Com. Law Reps. 24, dId. 42. Id. 31. (Id, 45.

account of A., and the defendants promised B. to pay the money according to his directions, but afterwards being applied to by C., refused to pay it, claiming a balance due to themselves from B. on a general account between them: it was held, that an action for money had and received would not lie against the defendants at the suit of A. - The general rule," observed Lord Denman, C. J., in delivering judgment, “undoubtedly is, that there is no privity between the agent in town and the client in the country, and the former cannot maintain an action against the latter for his fees, nor the latter against the former for negligence.” In order to render the town agents liable to the client it would be necessary to show either that the money was transmitted directly by the latter to the former, or that the country attorney received instructions to transmit it to them specifically ; or some fact should be put in evidence, warranting the conclusion that the country attorney was a mere conduit-pipe for the transmission of the money to the town agents.(6)

17 b. In like manner, as remarked by Patteson, J., it would be a very wide proposition to lay down, that where money is paid to bankers in the country, and their town agent receives the money, and promises to pay it, it becomes money had and received by him to the use of the party to whom it was directed to be paid.(c) In such a case the action could not be

*maintained by reason of the want of privity between the parties. [*16]

So, if A., a broker, introduces B., another broker, to a shipowner in order that a charter-party which B. has the power of procuring may be effected with the shipowner, A. is by the custom of the trade entitled to half the commission paid to B. by the shipowner in respect of procuring the charter-party; but in such a case B. is the proper person to sue for the amount of commission, and A. cannot be joined as a co-plaintiff, there being no privity of contract between him and the shipowner.(d)

17 c. Where A. being indebted to the plaintiff in a certain amount, and B. being indebted to A. in another amount, the defendant, in consideration of being permitted by A. to sue B. in his name, promised to pay A.'s debt to the plaintiff, and A. gave such permission, whereupon defendant recovered from B.-judgment was arrested on the ground that plaintiff was a mere stranger to the consideration for defendant's promise, having done nothing of trouble to himself or of benefit to the defendant.(e) Where, however, the declaration stated, that the defendants, being in possession of certain mortgage deeds, of which A. was desirous to obtain an assignment by the payment of 500l., the plaintiff consented at A.'s request to accept bills to that amount, drawn by A., upon A.'s procuring the defendants to deliver the deeds to the plaintiff as a security; and that the defendants, in

consideration of the plaintiff accepting the bills (but *without [*17]

alleging any request on their part,) undertook to deliver the deeds to him, upon his paying them the amount of the bills : it was held that a sufficient consideration appeared for defendant's promise, as it must be inferred from the above statement that the act of the plaintiff and the

(b) Cobb v. Becke, 14 L. J., N. S., Q. B., 108; distinguishing Moody v. Spencer, 2 Dowl. & Ry. 6.

(c) Per Patteson, J., 14 L. J., N. S., Q. B., 110.
(d) Hill v. Kitching, C. P., Trin. T., June 8, 1846; Law Times, vol. vii., p. 257.
(e) Bourne v. Mason, 1 Ventr. 6.

promise of the defendant were simultaneous, taking place in the presence of the parties, and, therefore, rendering it unnecessary that the plaintiff should have acted at defendant's request.(f) Nor, in the case of a guarantee, need it be expressly stated that the consideration moved from the plaintiff, if such can be fairly intended.(g)

18. Formerly, however, it was held, that a stranger to the contract might, under particular circumstances, sue thereon; and perhaps the most remarkable case, in which it was so decided, was, where a tenant in feesimple being about to cut down timber in order to raise a portion for his daughter, the defendant, his son and heir-at-law, promised the father, in consideration of his forbearing so to do, to pay such portion himself; and an action by the daughter's husband, and in her right, was held to lie against the son.(h)

19. The general rule being, that the party from whom the consideration moves, should be the plaintiff, seems *to hold, where the contract is founded upon a consideration to which each of several persons was

[ *18 ] a conducing party; and in such a case the action should be brought by all upon the promise to all, though for the benefit of one only.(3)

20. In determining the joinder of parties to simple contracts, the rule is, that all who have a joint legal interest, or are jointly entitled, must join, even though the contract be in terms several, or be entered into with one person only on behalf of all ;(k) so that, where the consideration moves from several parties jointly, such parties, as having the joint legal interest, should be joined as plaintiffs in suing for a breach of contract. (1)

21. Hence, where the several cattle of A. and B. were distrained, and C., in consideration of 101. to him paid by A. and B. jointly, promised to procure the re-delivery of the cattle, but failed in so doing; one joint action was held to lie at the suit of A. and B., the consideration being entire and indivisible. (m) So, where A. was entitled to certain shares in a ship, and B. and C. to the remaining *shares, and B. and C. employed defendant to sell the vessel, which he did, and paid over their

[ *19 ]

proportion of the purchase-money, but declined to pay plaintiff without their concurrence : plaintiff suing alone was non-suited for the non-joinder of the other part-owners.(n) So, money advanced on the joint credit of two per

(f)Tipper v. Bicknell, 3 Bing. N. C. 710. 715.5 (g) Dutchman v. Tooth, 5 Bing. N. C. 577.h

a) Dutton v. Poole, 2 Lev. 210, and 1 Ventr. 318. 332; affirmed in error, Sir T. Ray. mond, 302. See the remarks on this case, Barford v. Stuckey, 2 B. & B. 336, 337, and the argument in Price v. Easton, 4 B. & Ad. 433 ;ks and see Carnegie v. Waugh, 2 D. & R. 277; per Lord Alvanley, C. J., Pigott v. Thompson, 3 B. & P. 149.

(i) Chanter v. Leese, 4 M. & W. 295, 312;* affirmed in error, 5 M. & W. 698.*

(k) 2 Wms. Saund. 116, (2); Owston v. Ogle, 13 East, 538; Hill v. Tucker, 1 Taunt. 7; Townsend v. Neale, 2 Camp. 190; Com. Dig. Abatement, (E. 12.) The Fishmongers' Company v. Staines, 6 Scott, N. R. 120; as to the mode of taking advantage of non-joinder of a necessary party as plaintiff, see 1 Wms. Saund. 291, f.

(1) Chanter v. Lease, 4 M. & W.295;* affirmed in error, 5 M. & W. 698;* Coryton v. Litheby, 2 Wms. Saund, 116, a (2).

(m) Bac. Ab. Actions in General, (C.); see other cases, 2 Wms. Saund. 116, a (2). (n) Hatsall v. Griffith, 2 Cr. & M. 679; and Break v. Douglas, cited by Parke, B., Id. 681 ; Graham v. Robertson, 2 T. R. 282.

&Eng. Com. Law Reps. 32. bid. 35. Id. 6. Id. 24.

*Reprinted by T. & J. W. J. at $2.50 per vol.

sons, and paid over to satisfy a judgment against them, must be recovered by them jointly from a third party.(0)

21 a. Where an order of reference named two arbitrators, and gave them power to nominate an umpire, and they in the first place proceeded to nominate a third party :-Held, that an action lay at suit of the three referees for the costs of the award against the defendants, who had promised to pay them such costs.(P) And where a handbill was issued offering a reward of 1001. for the recovery of a stolen parcel and containing these words, “Whoever will give such information as will lead to the immediate recovery of the above parcel with its contents safe if lost, or the early apprehension of

the guilty parties if stolen, shall receive the above *reward :” the [ *20 ]

Court observed that, according to the true construction of this advertisement, the information must be given with a view to its being acted on, either to the person offering the reward or his agent, or some person having authority by law to apprehend the criminal ; and it appearing that the first communication was made by the plaintiff to C. in the course of conve

versation, but that the information which led to the apprehension of the guilty party was communicated to a constable by the plaintiff and C. jointly, it was held, that they ought both to have joined in an action brought for recovering the reward.(9)

22: Where, however, the interest is separate and distinct, the parties so interested cannot maintain a joint action ex contractu. Therefore, two of three persons, who have entered into a joint and several bond in a matter in which they are severally interested, cannot, on payment of the bond, join in suing the third for contribution ;(r) and, where a guarantee was given to three persons, and the interest of two of them, as determined by the situation in which all the parties stood in relation to the transactions out of which the guarantee arose, was separate and distinct in kind from that of the third, it was decided that the latter was rightly omitted as a plaintiff in suing on the guarantee.(s)

*22 a. It follows from the rule already stated as to the joinder of

parties in actions upon parol contracts, that a party having no legal interest in the cause of action cannot join in suing with one who has such interest. For instance, A., a wharfinger, received malt from and for B., and B. made a colourable sale of this malt to C. B. afterwards became bankrupt, and his assignees sued C. in trover for the malt. Pending the dispute it was agreed between A., C., and the assignees of B., that the malt should be sold, and the proceeds paid into a bank, except a part, which A. was to retain on account of an alleged lien against B. The assignees sub

[ *21]


(0) Osborne v. Harper, 5 East, 225. A covenant by A., not to sue for any debt due to him from defendant cannot be pleaded as a release in bar of an action by A. and B. for a debt due to them jointly; Walmesley v. Cooper, 11 A. & E. 216 ;' but one of several joint plaintiffs may release a joint debt, or may settle the action. Jones v. Yates, 9 B. & C. 532 ;m Wallace v. Kelsall, 7 M. & W.264.272,* which cases are recognised in Gordon v. Ellis, 8 Scott, N. R., 305.

(p) Hoggins v. Gordon, 3 Q. B. 466;u see also Hawkins v. Benton, 15 L. J., N. S., Q. B. 139; S. C. 14 Id. 177.

(9) Lockhart v. Barnard, 14 M. & W. 674.* See also Thatcher v. England, 10 Jurist, 597. (r) Kelby v. Steel, 5 Esp. 194. See Brand v. Boulcott, 3 B. & P. 235.

(s) Place v. Delegal, 4 Bing. N. Č. 426 ;• Palmer v. Sparshott, 4 Scott, N. R., 743. *Reprinted at $2.50 per vol. Eng. Com. Law Reps, 39. mId. 17. nId. 43. •Id. 33.

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