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GENERAL
RULES.

goods in company with Y., to be sent to Y., who receives and uses the goods. In settling which of the two A., the vendor, ought to sue for the price of the goods, the point to be determined is, whether credit was given to X., or to Y., or in other words, whether it was X. or Y. who held himself out to A. as the person to whom A. was to look for payment. The fact, that the goods were supplied to, and used by Y. is primâ facie evidence of their being supplied on his credit; but the question to be decided is not who used the goods, but who it was who undertook or promised by his acts to pay for them (9). Thus, where a business has been carried on by an executor as trustee for the benefit of the children of the testator, the executor has been held personally liable for debts incurred in the business, because credit was given to him (r), and in various instances it has been held, that the person liable for the repairs of a ship, or for goods supplied to a ship, is not necessarily the owner; but is the person on whose credit the work was done, or the goods supplied (s); since “ it is perfectly settled now, that the liability to pay for supplies to a ship depends on the contract to pay for them, and not on the ownership of the ship" (t).

So, where X. and Co. were registered as proprietors of a newspaper under 6 & 7 Will. IV. c. 76, s. 6, the fact of their names appearing as proprietors was held not to make them liable in respect of a contract specifically entered into by M., the real proprietor of the newspaper after they had ceased to be interested in it (u). For

(9) Most of the difficulties in choosing the right defendant in an action ex contractu, arise from the existence, in one form or another, of the relation of principal and agent, see Chapter XII.

(r) Viner v. Cadell, 3 Esp. 88.

(8) Young v. Brander, 8 East, 10; Annett v. Carstairs, 3 Camp. 354 ; Mitcheson v. Oliver, 5 E. & B. 419; 25 L. J. 39, Q. B.

(1) Mitcheson v. Oliver, 5 E. & B. 443, per Curiam. Compare Myers v. Willis, 17 C. B. 77 ; 25 L. J. 39, C. P. ; Brodie v. Howard, 17 C. B. 109 ; 25 L. J. 57, C. P.

(u) Holcrofi v. Hoggins, 2 C. B. 488 ; 15 L. J. 129, C. P.

GENERAL
RULES.

Exceptions.

Persons appointed by statute to be sued, Actions quasi ex contractu.

“the question in this case was," whether the defendants were contractors, not whether they were interested as proprietors in the newspaper wherein the plaintiff's articles appeared” (x). “The jury found that the contract in fact was not made by the defendants, or by their authority. The circumstance of the defendants' names remaining as registered owners, [did] not make the contract theirs, if it was made by the plaintiff exclusively with another party” (y).

Exception 1.-Actions against a person appointed by statute to be sued on behalf of others (2).

Exception 2.-Actions on some contracts implied by law or actions quasi ex contractu (a).

As already pointed out, the law often allows one person to sue another as if there were a contract between them, though in point of fact no contract exists. In other words, a person who has not made a promise is, under certain circumstances, liable to be sued as if he had made a promise. A promise on his part is, to use the technical expression, implied by law. The numerous cases in which a person is liable to an action for money had and received, though in fact he has entered into no contract with the plaintiff, have been already considered (6).

The action, again, for money paid is in many cases an action quasi ex contractu, in which the defendant is liable, not because he has made any promise, but because the law treats him as if he had made a promise. Thus, as already pointed out, if A. renders a service to X., e.g., pays X.'s debts without any express or tacit promise on X.'s part to remunerate him, X. is not liable to be sued by A. for payment. But if A. is compelled to make a

(x) Polcroft v. Hoggins, 2 C. B. 492, judgment of Tindal, C. J.
(y) Ibid., 494, per Creswell, J.
(z) See Rule 11, Exception 1, Rule 20, Exception 1, and Chap. XIII.
(a) See pp. 13--16, ante.

(6) See pp. 91, 92, ante. See also Russell v. Bell, 10 M. & W. 340, 352 ; Hill v. Perrott, 3 Taunt. 274; Rumsey v. North-East Rail. Co., 32 L J. 244, C. P. ; 14 C. B., N. S., 641.

GENERAL
RULES.

payment which X. is legally compellable to make, or to do anything which X. is legally compellable to do (c), X. is liable to an action on contract at the suit of A. ; that is, X., who has made no promise to pay A., is, under the circumstances of the case, liable to be sued as if he had made a promise or contracted to pay A.

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RULE 48.—The person to be sued for the breach Rule 48. of a contract by deed is the person by whom the Person to contract is expressed by the deed to be made, i.e., on a deed the covenantor (d).

be sued

fixed by the deed.

The covenantor is the person who must be sued for a breach of covenant. Where, therefore, X. covenanted with A. for himself and his heirs under his own hand and seal for the act of Y., he was held personally bound by his covenant, though he described himself in the deed as covenanting for and on the part and behalf of Y. “ The court said that it was impossible to contend that where one covenants for another he is not to be bound by it; the covenant being in his own name ' for himself his heirs, &c.' There is nothing unusual or inconsistent in the nature of the thing, that one should covenant to another that a third person should do a certain thing, as that he should go to Rome. The party to whom the covenant is made may prefer the security of the covenantor to that of his principal. Here the defendant covenants for himself, not in the name of his principal, and puts his own seal to it. There is nothing against law in it if he will bind himself for his principal” (e).

(c) Lampleigh v. Braithwait, 1 Smith, L. C., 6th ed., 137, 144.

(d) Or the representatives of such person. Compare further Rule 12.

(e) Appleton V. Binks, 5 East, 147, 148, per Curiam. Compare Priestley v. Pernie, 3 H. & C. 986; 34 L. J. 175, Ex., judgment of Bramwell, B.

GENERAL
RULES.

a

The covenantor is, moreover, the only person who can be sued for the breach of a covenant (f).

A covenantor, again, may, it seems, be sued on covenant by him contained in a deed, inter partes, though himself not a party to the deed (g); but no one can be sued on a covenant who has not executed the deed, for “it is a technical rule that a contract under seal cannot bind a person not executing" (h). The rule as to a covenantee and a covenantor may be thus summed up. A covenantee cannot sue on a covenant in an indenture if he is not a party to the deed, but he can sue on a deed which he has not executed. A covenantor can be sued on a covenant in an indenture even though he is not a party to the deed; but he cannot be sued on covenant in a deed which he has not executed.

a

RULE 49.

Joint contractors must be sued jointly.

RULE 49.—Where several persons are jointly liable on a contract they must all be sued in an action for the breach thereof, i. e., joint contractors must be sued jointly (i).

If X., Y., and Z., are joint contractors, they should all be made defendants in an action for breach of the contract, and if X. alone is sued, he may by proper pleading, that is by a plea in abatement, compel the plaintiff to add Y. and Z. as co-defendants. But if the objection that a contractor is omitted who is jointly liable with the defendant, is not taken by a plea in abatement, proof at the trial of a joint contract sustains the allega

(f) See pp. 101, 102, ante.

(9) Salter v. Kidgley, Carth. 76 ; Coke, Litt., 230 b. Some doubt as to this is expressed by Parke, B.; Beckham v. Drake, 9 M. & W. 95 ; Lush, Practice, 3rd ed., 16, note z; Davidson, Precedents, 3rd ed., 36. Contrast this with the rule as to covenantees, pp. 103, 104, ante.

(h) Priestley v. Pernie, 3 H. & C. 986, per Bramwell, B.
(i) See pp. 11, 12, ante.

GENERAL
RULES.

tion that the defendant contracted (j). A contractor, that is to say, may by proper pleading cause the persons liable together with him to be made co-defendants in an action for the breach of their joint contract; but he cannot get rid of his liability simply by proving that other persons are also liable (k).

A. sued X., the commandant of a volunteer corps, and a member of the committee for the price of uniforms supplied to members of the corps. No plea in abatement was pleaded, and it was held that if the contract on which the action was brought was made by X. jointly with the committee, or jointly with the whole corps, he was liable even though sued alone (1).

A defendant sometimes cannot plead the non-joinder of his co-defendants, even in abatement.

The cases where such a plea cannot be pleaded form the exceptions to the general rule.

Ecception 1.-Where a co-contractor has become bankrupt. Exceptions.

Where a joint contractor has become bankrupt, an Where coaction may be brought on the contract against his co

bankrupt, contractors alone (m).

Claim Erception 2.-Where a claim is barred against one or more joint

barred debtors, and not against others.

against

one joint Where several persons are joint debtors, it may happen debtor. that in consequence of an acknowledgment or part payment of the debt by one or more of them, the effect of the Statutes of Limitation is avoided as regards one more of them, and not as regards others (n). Those

contractor

or

(j) 1 Wms. Saund. 291, 291 b; Whelpdale's Case, 5 Coke, Rep. 119 a; Richards v. Heather, 1 B. & Ald. 35 ; Cross v. Williams, 7 H. & N. 675; 31 L. J. 145, Ex.

(k) Contrast this with the rule as to co-plaintiffs, Rule 13; and see Chapter XXXIV. (1) Cross v. Williams, 7 H. & N. 675; 31 L. J. 145, Ex. ; Rice v.

; Shute, 1 Smith, L. C., 6th ed., 511.

(m) 3 & 4 Will. IV. c. 42, s. 1.

(n) 9 Geo. IV., c. 14, s. 1 ; 19 & 20 Vict. c. 97, ss. 13, 14; Boydell v. Drummond, 2 Camp. 157 ; Darby & Bosanquet, Limitations, 44, 104 ; Bullen, Pleadings, 3rd ed., 642—644.

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