Metropo litan, &c., Co. of the proceeds of the property. It was not at all suggested that he could have sued alone in equity any more than at law (a); and the true view of the case appears to be that the transaction between Williams and Parker amounted to a declaration of trust of the property assigned for the satisfaction of Gregory's claim to the specified extent (b). Dictum in As lately as 1871 it was said by Lord Hatherley in Touche. Touche v. Metropolitan Railway Warehousing Co. (e), that "where a sum is payable by A. B. for the benefit of C. D., C. D. can claim under the contract as if it had been made with himself." But no such doctrine was necessary to the decision of the case. The suit was by promoters against the company. The articles of association of the company recited an arrangement with G. H. Walker that he should pay a sum to the promoters, and one of the articles provided that the directors should pay that sum to Walker in the event (which happened) of a certain number of shares being subscribed for and 21. upon each paid up. Now this was in truth and substance an obligation embodied in the original constitution of the company to pay the sum in question to the promoters by Walker as the company's agent, or to Walker as a trustee for the promoters, and on this ground the decision, which at first sight looks anomalous, may well be supported (d). The dictum above cited has now in a case of the same (a) For an attempt of a third person to sue at law under very similar circumstances see Price v. Easton, 4 B. & Ad. 433, showing clearly that A. cannot sue on a promise by B. to C. to pay C.'s debt to A. (b) Empress Engineering Co. (C. A.) 16 Ch. D. 125, 129, 130, by Jessel, M.R. and James, L.J. (c) 6 Ch. 671, 677. (d) Mr. Justice Lindley (1. 396) seems to take this view of the case, which is also supported by the later decision in Eley v. Positive, &c., Life Assurance Co. (C. A.) 1 Ex. D. 88, that a provision in articles of association that A. shall be solicitor to the company and transact all its legal business is as regards A. res inter alios acta and gives him no right against the company. See also Melhado v. Porto Alegre Ry. Co. L. R. 9 C. P. 503. In America the rule is still unsettled, and conflicting opinions are held in different States. See an article on the subject in the American Law Review for April, 1881. class been all but directly contradicted by the Court of Appeal. "A mere agreement between A. and B. that B. shall pay C. (an agreement to which C. is not a party either directly or indirectly) will not prevent A. and B. from coming to an agreement the next day releasing the old one" (a). Cox: pro partner Another apparent exception is the case of Page v. Cox (b), Page v. where it was held that a provision in partnership articles vision for that a partner's widow should be entitled to his share of widow in the business might be enforced by the widow. But the ship decision was carefully put on the ground that the provision articles. in the articles created a valid trust of the partnership property in the hands of the surviving partner. The result is that there is no real and allowed authority for holding that rights can in general be acquired by third parties under a contract, unless by the creation of a trust. venience Contract ing parties can enable one of We now come to the class of cases in which contracting Third parties have attempted for their own convenience to vest person empowered to the right of enforcing the contract in a third person. sue for conExcept within the domain of the stricter rules applicable of parties. to parties to actions on deeds and negotiable instruments, there appears to be no objection to several contracting can parties agreeing that one of them shall have power to sue themselves for the benefit of all except the party sued. Thus where to sue on partners create by agreement penalties to be paid by any himself partner who breaks a particular stipulation, they may em- and others: power one partner alone to sue for the penalty (c). The application of the doctrines of agency may also lead to similar results (d). It seems doubtful whether a promise to several persons to make a payment to one of them will of itself enable that one to sue alone (e). (a) Jessel, M.R., Empress Engineering Co., 16 Ch. D. 125, 129. (b) 10 Ha. 163. (c) Radenhurst v. Bates, 3 Bing. 463, 470. Of course they must take care to make the penalty payable not to the whole firm, but to the members of the firm minus the offending partner. Whether under the present (d) Spurr v. Cass, L. R. 5 Q. B. 656. behalf of But cannot enable a stranger. But it is quite clear that the most express agreement of contracting parties cannot confer any right of action on Attempts the contract on a person who is not a party. Various by unincorporated devices of this kind have been tried in order to evade the companies difficulties that stand in the way of unincorporated assoa nominal ciations enforcing their rights, but have always failed when plaintiff. attention was called to them. This has happened in the case to appoint v. Pearson. of actions brought by the chairman for the time being of the directors of a company (a), by the directors for the time being of a company (b), by the purser for the time being of a cost-book company (c), and by the managers of a mutual marine insurance society (d). It will not be necessary to dwell on any instance other than the last. In Gray v. Pearson the reasons against allowing the right of action are well given in the judgment of Willes, J. : : Judgment "I am of opinion that this action cannot be maintained, and for of Willes, the simple reason,-a reason not applicable merely to the procedure J. in Gray of this country, but one affecting all sound procedure,—that the proper person to bring an action is the person whose right has been violated. Though there are certain exceptions to the general rule, for instance in the case of agents, auctioneers, or factors, these exceptions are in truth more apparent than real. The persons who are suing here are mere agents, managers of an assurance association of which they are not members; and they are suing for premiums alleged to have become payable by the defendant in respect of policies effected by the plaintiffs for him, and for his share and contributions to losses and damages paid by them to other members of the association whose vessels have been lost or damaged. The bare statement of the facts is enough to show that the action cannot be maintained. not, but gave no decision. In Jones (a) Hall v. Bainbridge, 1 Man. & Gr. 42. (b) Phelps v. Lyle, 10 A. & E. 113. (c) Hybart v. Parker, 4 C. B. N. S. 209, 27 L. J. C. P. 120: where Willes, J. suggested that it was trenching upon the prerogative of the Crown to make a new species of corporation sole for the purpose of bringing actions. (d) Gray v. Pearson, L. R. 5 C. P. 568 in the earlier case of Gray v. Gibson, L. R. 2 C. P. 120, a similar action succeeded, the question of the manager's right to sue not being raised. "It is in effect an attempt to substitute a person as a nominal plaintiff in lieu of the persons whose rights have been violated." bills pay Another variety of the same device is a document pur- Notes and porting to be a negotiable instrument payable to the able to treasurer or other officer for the time being of a society. treasurer, &c., for Such a document, whether in the form of a promissory time being, note (a) or of a bill of exchange (b), is invalid, for the invalid. payee must be a person capable of being ascertained at the time of making the note or accepting the bill. There is no doubt that a contract in any other form to pay the treasurer for the time being would be equally inoperative to give any right of action to the person who should from time to time fill the office (c). But a promissory note payable to "the trustees of the W. chapel or their treasurer for the time being" is good: for it is considered that the trustees existing at the date of the note are the persons ascertained as payees, and that the treasurer is named only as their agent to receive payment (d). Contrivances of this kind have not, so far as we know, come before our courts of equity; indeed their chief object has been to avoid the necessity of suing in equity. The Rules of the Supreme Court, following the former practice of the Court of Chancery, now provide that "where there are numerous persons having the same interest in one action, one or more of such parties may sue or be sued, or may be authorized by the Court to defend in such action, on behalf or for the benefit of all parties so interested" (e); but a person not really interested cannot be put forward as a representative (ƒ). (a) Storm v. Stirling, 3 E. & B. 832, 23 L. J. Q. B. 298; in Ex. Ch. nom. Cowie v. Stirling, 6 E. & B. 333, 25 L. J. Q. B. 335. (b) Yates v. Nash, 8 C. B. N. S. 581, 29 L. J. C. P. 306. (c) Pigott v. Thompson, 3 Bos. & P. 147. (d) Holmes v. Jaques, L. R. 1 Q. B. 376. (e) Order XVI. r. 9. (f) Except to represent a defendant heir-at-law or next of kin in the cases provided for by Order xvi. r. 9a (June 1876). Cp. as to shareholders' suits Forrest v. Manchester, &c., Ry. Co., 4 D. F. J. 126, Robson v. Dodds, 8 Eq. 301; dist. Seaton v. Grant, 2 Ch. 459, Bloxam v. Metropolitan Ry. Co., 3 Ch. 337. Rule 4. Transfer of rights under contract. Right to sue on contract not at common origin of the rule. Assignment of Contracts. Rule 4. We now come to the fourth rule, which we have expressed thus:— Persons other than the creditor may become entitled by representation or assignment to stand in the creditor's place and to exercise his rights under the contract. We need say nothing here about the right of personal representatives to enforce the contracts of the person they represent, except that it has been recognized from the earliest period of the history of our present system of law (a). With regard to assignment, the benefit of a contract cannot be assigned (except by the Crown) at common law so as assignable to enable the assignee to sue in his own name (b). The law: origin of the rule was attributed by Coke to the "wisdom probable and policy of the founders of our law" in discouraging maintenance and litigation (c): but there can be little or no doubt that it was in truth a logical consequence of the primitive view of a contract as creating a strictly personal obligation between the creditor and the debtor (d). Anyhow, it has been long established that the proper course at common law is for the assignee to sue in the name of the assignor. It appears from the Year Books that attempts were sometimes made to object to actions of this kind on the ground of maintenance, but without success (e). The same rule is very distinctly stated by Gaius as prevailing in the Roman law (ƒ). (a) Subject to some technical exceptions which have now disappeared: see notes to Wheatley v. Lane, 1 Wms. Saund. 240 sqq. and for early instances of actions of debt brought by executors, Y. B. 20 & 21 Ed. 1, pp. 304, 374. (b) Termes de la Ley, tit. Chose in Action. (c) Lampet's ca. 10 Co. Rep. 48a. For exposition of the rule in detail see Dicey on Parties, 115. (d) Spence, Eq. Jurisd. of Chy. 2. 850. An examination of the earlier authorities has been found to confirm this view. The rule is assumed as unquestionable, and there is no trace of Coke's reason for it. The objection of maintenance was set up, not against the assignee suing in his own name, which was never attempted so far as we can find, but against his suing in the name of the assignor: see following note. (e) See Note E in Appendix. (ƒ) Gai. 2. 38, 39. Quod mihi ab aliquo debetur, id si velim tibi |