deed by way of action. It mattered not that the deed was made for the exclusive benefit of other individuals named therein, and contained covenants with them for the performance of certain duties, if they had not been made parties to the contract, they could not sue thereon, although they might have sealed and delivered the deed in common with those who were formally described as the parties to the instrument. (a)

Certain articles of agreement under seal, for example, were made "between Thomas Warren, fully authorized on behalf of Elizabeth Gilby (the plaintiff) of the one part, and Lionel Copley (the defendant) of the other part, in which it was recited that Warren had sold to the defendant 448 sheep, the property of the said Elizabeth Gilby, in consideration whereof the defendant had paid in hand one shilling to the said Warren, and did promise to pay to the said Elizabeth Gilby, the plaintiff, £210 for the said 448 sheep, on the 16th of June next following, and upon demurrer, it was held by Levinz, J., that the action should have been brought by Warren, and that the plaintiff, Elizabeth Gilby, not having been a party to the deed, could not sue thereon. (b)

An agreement under seal was made between Bartlett and the defendant of the one part, and Pitts of the other part, wherein Bartlett and the defendant promised and agreed with Pitts, his executors and administrators, that they would pay him an annuity for twenty-one years, or in case of his death within the term, unto and for the use of his child or children. Pitts died within the term, leaving one daughter, who also died within the term intestate, and the administrator of the daughter brought an action on the deed for the non-payment of the annuity, but it was held, that he could not recover, as the contract on the face of the deed was with Pitts, his executors and administrators, and no one else, and the daughter of the deceased Pitts was no party to the deed, nor privy thereto, although on the happening of a certain event, she would take a beneficial interest; that the administrator of Pitts, therefore, was the party in whom the legal interest in the contract was vested, and who ought to have sued upon the deed, and if he had refused to sue, a court of equity would have compelled him to lend his name, and having recovered the arrears of the annuity, he would be held a trustee for the daughter, and would have been bound to pay over the money to her next of kin. (c)

A landlord authorized his agent by writing, not under seal, to execute a lease on his (the landlord's) behalf. An indenture of lease was there

(a) Quick v. Ludburrow, Rolle rep. 196. Windsmore v. Hubbard. id. 58. Wickham v. Hawker, 7 M. & W. 63.

(b) Gilby v. Copley, 3 Lev. 138.

(c) Barford v. Stuckey, 5 Moor, 23; 2 B. & B. 333, s. c.

upon signed and sealed by the agent in his own name, but it was expressed to be made between T. (the agent,) for and on behalf of B. (the landlord,) of the one part, and the tenant of the other part. All the covenants were made between the tenant and the landlord, and the latter, therefore, brought his action upon them; but it was held, that as the deed was inter partes, and the landlord had not been made a party to it, he could not sue thereon, although the covenants were expressed to be made with him, and the deed had been entered into in his behalf and for his express benefit. (d)

A deed was made between J. and C. Drummond of the first part, the Dowager Baroness Southampton, the guardian of the plaintiff, of the second part, and the defendant of the third, whereby certain premises were demised by the said J. and C. Drummond, with the assent of the Baroness, to the defendant, at a yearly rent, to be paid to the plaintiff and the heirs male of his body, and the defendant covenanted with the plaintiff and with the said J. and C. Drummond, to pay the rent and repair; and it was held, that the plaintiff could not join in an action against the defendant upon these covenants, as he was no party to the deed. (e)

A deed of composition with creditors was expressed to be made between a debtor of the first part, his surety of the second part, and the several other persons whose hands and seals were set and subscribed thereto, being creditors, of the third part. The deed contained covenants with the said several creditors, parties thereto, and to and with their and each and every of their partners in trade. Metcalf, one of the members of a firm in partnership who were creditors, subscribed the deed in the name and firm of himself and partner, viz. “Farrar and Metcalfe," and set his seal thereto; and it was held, in an action brought upon the deed, that as Farrar had not affixed his own hand and seal to the deed, so as to constitute himself a party according to the terms of the instrument, he could not join his partner Metcalf in suing thereon. (ƒ)

And where an indenture of charter party was made between the plaintiffs, owners of the good ship called B., whereof one Robert Pitman was master, of the one part, and the defendant of the other part, in which indenture the defendant entered into covenants with the plaintiffs and Pitman the master, and an action was brought upon these covenants by the plaintiffs against the defendant, who pleaded a release from Pitman, it was held, that such release could be no bar to the action, as Pitman

(d) Berkeley v. Hardy, 8 D. & R. 102; 5 B. & C. 355.

(e) Lord Southampton v. Brown, 6 B. & C.

718.

(f) Metcalfe v. Rycroft, 6 M. & S. 75.

had not been made a party to the indenture, and that where an indenture was reciprocal between parties on the one side and parties on the other side, no bond, covenant, or grant could be made to or with any that was not a party to the deed. (g)

66

Deeds Poll.-But when a deed was not made reciprocal between parties of the one part, and parties of the other part, but was expressed to be made generally "to all" in the nature of a deed poll, then, if any one or more persons contracted or covenanted therein with a stranger, the latter might bring an action upon the deed against the parties so covenanting and contracting, provided they had duly sealed and executed the instrument. (h) Thus where an indenture of charter party began at once, This indenture witnesseth that Bentley, master and part owner of the ship A., with the consent of Cooker, the other part owner, lets the ship to Child for a voyage," and Child then covenanted to pay Bentley so much as master, and also with Cooker, to pay to him 3007., and an action having been brought by Cooker for the 3007., Child pleaded that only himself and Bentley were the parties to, and sealed and delivered the deed, the court held on demurrer, that the deed was not an indenture inter partes, in which none that is not party to the deed can have an action upon it;" but that the instrument was in the nature of a deed poll, whereby those named in, and who sealed the deed, might covenant with other persons strangers to the deed to do several acts for which every one severally might bring his action. (i) As in the case of an ordinary bond or obligation where fifty persons may be bound to one who is no party to the instrument, and all are liable to an action at his suit."

66

The portion of the transfer of property act, which continued in force from the 1st of January to the 1st of October, 1845, enacts, that any person not being a party to any deed may take an immediate benefit under it in the same manner as he might under a DEED POLL," and the 8 and 9 Vict., c. 106, enacts, that after the 1st of October, 1845, an immediate estate or interest, and the benefit of a condition or covenant respecting any tenements or hereditaments may be taken, although the taker thereof be not named a party to the same indenture.

(g) Scudamore v. Vandenstene, 2 Inst. 673;

2 Rolle Ab. Faits, F. 1, Cro. Eliz. 56, s. c. Storer v. Gordon, 3 M. & S. 322.

(A) Roll Abr. Faits, 22. Scudamore v. Van

denstene, 2 Inst. 673.

(i) Cooker v. Child, 2 Lev. 74. Shaw v. Sherwood, 1 Cr. 729; Yelv. 23.

When there is no formal commencement to a deed describing who are the parties to it, and whose deed it is, it is held to be the deed of those who are named in the instrument as contracting parties, and who put their seals to it. Thus, where no parties were mentioned in the commencement of the deed, but the instrument began simply, "It is agreed that," &c., and ended "In witness whereof we have set our hands and seals," and the plaintiff and defendant were both named in the deed, and had both signed and sealed the deed; it was held, that the signing and sealing made them parties to the instrument. (k) But they must, of course, be named in the body of the deed, for no person can maintain an action upon a contract under seal, unless he is named therein, (7) either by his own name or by some acquired and well-known title or description, and the contract or covenant must in express terms be made with him.

Of the right of action upon DEEDS in the case of TRUSTEE and CESTUIQUE TRUST.-It is a fixed rule of law, for example, that the action upon a contract under seal, whether such, contract be a deed inter partes or a deed poll, must be brought by the party with whom the contract is in terms made, and not by the person in whose behalf or for whose benefit it has been made.

If, for example, a man by deed covenants or promises to pay a sum of money to A., to the use of B., or, for the benefit of B., B. cannot maintain an action upon the instrument. (m) Neither, if a covenant be made to three persons to pay money to them to the use of a fourth, can the fourth person sue upon the deed. (n) The courts of law recognise no other interest but that of the party with whom the contract is expressed to be made, and they give consequently no legal force or effect whatever, by way of contract, to the words "to the use" or for the benefit." Thus, if a bond or obligation under seal be expressed to be made to A., for the payment of 201. a piece to B. and C., neither of them can sue for the money, but the action must be brought in the name of A. (o) And if a covenant or bond be made to two or more persons to pay money to one of them, the action must be brought by all, and he to whom the money is to be paid cannot alone sue for it. (p) In these cases the party to whose use or for whose benefit the contract has been entered into, has a remedy in equity against the person with whom it is expressed to be made. The

(k) Nurse v. Framton. 1 Raym. 28; 1 Salk. 214, s. c.

8. C.

(1) Green v. Horn, 1 Salk. 197; Comb. 219,

(m) Offley v. Ward, 1 Lev. 235; 3 Lev. p. 140, s. c.

(n) Petrie v. Bury, 3 B. & C. 353; 5 D. & R. 152. Barford v. Stuckey, 2 B. & B. 333. (o) Shaw v. Sherwood, 1 Cro. 729; Yelv. 23, s. c.; 3 Lev. 140.

(p) Anderson v. Martindale, 1 East, 497 501. Rolls v. Yate, Yelv. 187

Court of Chancery deems the latter a trustee for the former, and will compel him to execute his trust, according to the apparent intention of the contracting parties. Hence, the one is technically said to have the legal estate in the contract, and the other the equitable interest. (q) When, however, no express promise or engagement is entered into with some person or persons in particular, the case is different. If, for example, a man by writing sealed and delivered, acknowledges generally that he has received a particular sum of money to the use of A., this makes him a debtor to A. to the amount specified. (r)

A bill or receipt under seal was couched in the following terms: "Received of A. 40l. to the use of B. and C. equally, to be divided between them, to be repaid at such time as shall be most to the profit of B. and C. ;" and it was held, that this was an engagement with B. and C. to pay the money to them whenever they required it, and that B. and C. might consequently maintain an action for the recovery of the 407. (s) When, however, the right of action is vested in one person, on behalf of and for the benefit of another, the law will, in certain cases and under certain circumstances, permit the party beneficially interested, on tendering an indemnity, to maintain an action in the name of the party with whom the contract is in terms made. (t)

Of the right of action of COVENANTEES who have omitted to execute the DEED. It is not in general necessary that those who have been made parties to a deed inter partes should execute the deed, to be enabled to sue thereon.

Thus, where two joint covenantees sued upon an indenture to which they were both parties, but which was executed by one of them only, it was held, that the action was maintainable on the ground that the plaintiff who had not executed was a party to the deed, and that the covenantor had executed to him as well as to his co-plaintiff. (u) Neither need a grantee under a deed execute, provided he has been made a party to the deed, for the law presumes his assent to the grant in the absence of an express disclaimer. (a) Where real property, therefore, is conveyed to trustees, parties to a deed, it is not necessary for them to execute, as the legal estate forthwith vests in them, unless they disclaim the grant; and if

(g) Schack v. Anthony, 1 M. & S. p. 575. Scholey v. Mearns, 7 East, 153. (r) Montague 28 H. 8. Core v. Woody, Dyer, 20, 21. Whorewood v. Shaw, Yelv. 23. (8) Shaw v. Sherwood, 1 Cr. 729.

(t) Lamb v. Vice, 6 M. & W. 472; Chitt. Arch. 996. Scholey v. Mearns, 7 East, 148. Hanson v. Parker, 1 Wils. 257. Gibson v.

Winter, 5 B. & Ad. 96; post. ch. 11.

(u) Clement v. Henley, 2 Rolle Abr. 22; Faits F. 2. Parke, J., Rose v. Poulton, 2 B. & Ad 830.

(x) Townson v. Tickell, 3 B. & Ald. 31, and the disclaimer of a grant of realty should be made by deed. T. 13, R. 2. Fitz. Abr. Joint-tenancy, pl. 9.