And it seems reasonable to suppose, notwithstanding the want of express authority, that near relationship would not now be held to constitute of itself any ground of exception. Authori- On the other hand the case of Gregory v. Williams (a) shows ties favourthat a third person for whose benefit a contract is made may join ing it: Gregory. Wil- as co-plaintiff with one of the actual contracting parties against liams (third the other, and insist on the arrangement being completely carried person coplaintiff out. The facts of that case, so far as now material, may be with constated as follows: Parker was indebted to Williams and also to tractee). Gregory; Williams, being informed by Parker that the debt to Gregory was about £900, and that there were no other debts, undertook to satisfy the debt to Gregory on having an assignment of certain property of Parker's. Gregory was not a party to this arrangement, nor was it communicated to him at the time. The property having been assigned to Williams accordingly, the Court held that Gregory, suing jointly with Parker, was entitled to call upon Williams to satisfy his debt to the extent of £900, (but not farther, although the debt was in fact greater) out 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 (b). Dictum in litan, &c., Co. A dictum in the recent case of Touche v. Metropolitan RailMetropo- way Warehousing Co. (c), goes much farther; for there it was said 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 The articles of association of the company recited an company. 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 £2 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 (a) 3 Mer. 582. (b) 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. (c) 6 Ch. 671, 677. company's agent, and on this ground the decision, which at first sight looks anomalous, may well be supported (a). decision doubt. However when we consider the grounds on which the judg- No positive ment was in fact based, and the earlier cases already referred to, but enough it is impossible to say with confidence that the question how to create far third persons can acquire equitable rights under contracts and independent of trust is not to some extent unsettled. Another apparent or perhaps more than apparent exception is the case of Page v. Cox (b), where it was held that a provision in partnership articles that a partner's widow should be entitled to his share of the business might be enforced by the widow. However the decision was carefully put on the ground that the provision in the articles created a valid trust of the partnership property in the hands of the surviving partner. can enable We now come to the class of cases in which contracting Third person emparties have attempted for their own convenience to vest the right powered to of enforcing the contract in a third person. Except within the sue for convenience of domain of the stricter rules applicable to parties to actions on parties. deeds and negotiable instruments, there appears to be no objection Contractto several contracting parties agreeing that one of them shall have ing parties power to sue for the benefit of all except the party sued. Thus one of where partners create by agreement penalties to be paid by any to sue on partner who breaks a particular stipulation, they may empower 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) Mr. Justice Lindley (1. 410) seems to take this view of the case. (b) 10 Ha. 163. (e) 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. (d) Spurr v. Cass, L. R. 5 Q. B. 656. (e) Chanter v. Leese, 4 M. & W. 295; in Ex. Ch. 5 M. & W. 698, where both Courts inclined to think not, but gave no decision. In themselves behalf of himself and others : 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 the contract Attempts on a person who is not a party. Various devices of this kind by unin companies a nominal plaintiff. have been tried in order to evade the difficulties that stand. corporated in the way of unincorporated associations enforcing their rights : to appoint and such devices, in Mr. Justice Lindley's words (a), “however ingenious, are utterly worthless. Attempts to enable actions to be brought by the chairman for the time being of the directors of a company (b), by the directors for the time being of a company (c), by the purser for the time being of a cost-book company (d), by the managers of a mutual marine insurance society (e), have all been made in turn, and have all been made in vain." 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. :— r. Pearson. 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 plaintiff's 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 shew that the action cannot be maintained. "It is in effect an attempt to substitute a person as a nominal plaintiff in lieu of the persons whose rights have been violated." Notes and bills pay able to Another variety of the same device is a document purporting to be a negotiable instrument payable to the treasurer or other (a) Lindley on Partnership, 1.508. (b) Hall v. Bainbridge, 1 Man. & Gr. 42. (c) Phelps v. Lyle, 10 A. & E. 113. (d) 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. (e) 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. ! officer for the time being of a society. Such a document, whether treasurer, &c., for in the form of a promissory note (a) or of a bill of exchange (b), time being, is invalid, for the payee must be a person capable of being invalid. 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. Where the parties" interested are numerous, the practice of equity allows a few or one to represent a class having the same interest; but a person not really interested could not be put forward as a representative (e). 4. We now come to the fourth rule, which we have expressed Rule 4. Transfer of thus:rights Persons other than the creditor may become entitled by repre- under consentation 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 (f). With regard to assignment, the benefit of a contract cannot be assigned (except by the Crown) at common law so as to enable the assignee to sue in his (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) Cp. as to shareholders' suits Forrest v. Manchester, &c., Ry. Co. 4 D. F. J. 126, Robson v. Dodds, 8 (f) Subject to some technical tract. tract not at common law: the rule. Right to own name (a). The origin of the rule was attributed by Coke sue on con- to the "wisdom and policy of the founders of our law" in disassignable couraging maintenance and litigation (b): but there can be little or no doubt that it was in truth a logical consequence of the probable primitive view of a contract as creating a strictly personal obliorigin of gation between the creditor and the debtor (c). 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 (d). The same rule is very distinctly stated by Gaius as prevailing in the Roman law (e). In equity assignee may sue. Limitations of assignee's rights. In equity the right of the assignee to sue in his own name has) been recognized for some considerable time; it is perhaps impossible to say precisely for how long, but at any rate since the rules of equity have been at all systematic (f). However we are) here concerned not so much with the existence of rights under a contract derived from the original creditor by assignment as with the limitations to which those rights are generally subject, the extensions of which they are sometimes capable, and the peculiar modes of transfer appropriate to the rights and duties arising out of some special kinds of contracts. The limitations are expressed in the explanations we have added to the rule, which are as follows : (a) Termes de la Ley, tit. Chose in Action. (b) Lampet's ca. 10 Co. Rep. 48a. For exposition of the rule in detail see Dicey on Parties, 115. (c) 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. (d) Y. B. 9 H. 6. 64, pl. 17; 34 H. 6. 30, pl. 15; 15 H. 7. 2, pl. 3; Brooke, Abr. 1406. (e) Gai. 2. 38, 39. Quod mihi ab aliquo debetur, id si velim tibi deberi, nullo eorum modo, quibus res corporales ad alium transferuntur, id efficere possum; sed opus est, ut iubente me tu ab eo stipuleris quae res efficit ut a me liberetur et incipiat tibi teneri. quae dicitur novatio obligationis. Sine hac vero novatione non poteris tuo nomine agere, sed debes ex persona mea quasi cognitor aut procurator meus experiri. (f) There is a curious case in Y. B. 37 H. 6. 13, pl. 3, from which it seems that equitable assignments were then unknown. For collections of authorities on the modern doctrine of equitable assignments in general, see Lewin on Trusts, 496 sqq.; 2 Wh. & T. L. C. 734, notes to Ryall v. Rowles; Leake 601. |