William Tweddle, the son of John Tweddle, brought an action against the executor of William Guy on this agreement, the declaration averring his relationship to the parties, and their intention to carry out a verbal agreement made before the plaintiff's marriage to provide a marriage portion. The action was held not to be maintainable. The Court did not in terms overrule the older cases to the contrary, considering that their authority was already sufficiently disposed of by the effect of modern decisions and practice (a). ties in The doctrines of equity are not so free from doubt. There is Authoriclear and distinct authority for these propositions: When two equity persons, for valuable consideration as between themselves, con- against tract to do some act for the benefit of another person not a party to the contract (i) That person cannot enforce the contract against either of the contracting parties, at all events if not nearly and legitimately related to one of them (b) (qu. if not within the exception mentioned above, p. 194, in favour of children provided for by marriage settlements?). (ii) But either contracting party may enforce it against the other although the person to be benefited had nothing to do with the consideration (c). 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. right of third person. ties favour On the other hand the case of Gregory v. Williams (d) shows Authori that a third person for whose benefit a contract is made may ing it: Grejoin as co-plaintiff with one of the actual contracting parties gory v. Wilagainst the other, and insist on the arrangement being comliams (third person copletely carried out. The facts of that case, so far as now plaintiff material, may be stated as follows: Parker was indebted to Williams and also to Gregory; Williams, being informed by Parker that the debt to Gregory was about 9007., and that there were no other debts, undertook to satisfy the debt to Gregory on (a) See also Price v. Easton, 4 B. & Ad. 433. Much less can a stranger to a contract who has suffered damage by the non-performance of it sue the defaulting party for the damage Playford v. United King dom Electric Telegraph Co., L. R. 4 Q. B. 706, Dickson v. Reuter's Tele- C. P. D. 1. (b) Colyear v. Mulgrave, 2 Kee. 81. with contractee). Dictum in litan, &c., Co. 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 9007. (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 (a). A dictum in the recent case of Touche v. Metropolitan RailMetropo way Warehousing Co. (b), goes much further; 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 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 27. 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, and on this ground the decision, which at first sight looks anomalous, may well be supported (e). No positive decision but enough to create doubt. However when we consider the grounds on which the judgment was in fact based, and the earlier cases already referred to, it is impossible to say with confidence that the question how far third persons can acquire equitable rights under contracts and independent of trust is not to some extent unsettled. Another (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) 6 Ch. 671, 677. (c) Mr. Justice Lindley (1. 410) 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. apparent or perhaps more than apparent exception is the case of Page v. Cox (a), 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. But 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. venience of can enable We now come to the class of cases in which contracting Third parties have attempted for their own convenience to vest the person empowered to right of enforcing the contract in a third person. Except within sue for conthe domain of the stricter rules applicable to parties to actions parties. on deeds and negotiable instruments, there appears to be no Contractobjection to several contracting parties agreeing that one of them ing parties shall have power to sue for the benefit of all except the party one of sued. Thus where partners create by agreement penalties to be paid by any partner who breaks a particular stipulation, they behalf of may empower one partner alone to sue for the penalty (b). application of the doctrines of agency may also lead to similar results (c). 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 (d). The themselves to sue on himself and others: enable a But it is quite clear that the most express agreement of con- But cannot tracting parties cannot confer any right of action on the contract stranger. on a person who is not a party. Various devices of this kind Attempts have been tried in order to evade the difficulties that stand by unincorporated in the way of unincorporated associations enforcing their companies rights and such devices, in Mr. Justice Lindley's words (e), to appoint "however ingenious, are utterly worthless. Attempts to enable plaintiff. (a) 10 Ha. 163. (b) 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 Rules of Court the other partners could use the name of the firm to sue for the penalty, quære. (c) Spurr v. Cass, L. R. 5 Q. B. 656. (d) 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 Jones (e) Lindley on Partnership, 1. 508. a nominal actions to be 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 (), by the purser for the time being of a costbook company (), by the managers of a mutual marine insurance society (d), 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. 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 v. Pearson. 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 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 able to Another variety of the same device is a document purporting bills pay to be a negotiable instrument payable to the treasurer or other treasurer, officer for the time being of a society. Such a document, whether &c., for time being, in the form of a promissory note (e) or of a bill of exchange (ƒ), invalid. is invalid, for the 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 (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. (e) 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. (f) Yates v. Nash, 8 C. B. N. S. 581, 29 L. J. C. P. 306. 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 (a). 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 (b). 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" (c); but a person not really interested cannot be put forward as a representative (d). Part 4. Assignment of Contracts. Rule 4. We now come to the fourth rule, which we have ex- Rule 4. pressed thus: Tranfer of rights Persons other than the creditor may become entitled by repre- under consentation or assignment to stand in the creditor's place and to tract. 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 (e). 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 own name (ƒ). The origin of the rule was attributed by Coke to the "wisdom and policy of the founders of our law" in (a) Pigott v. Thompson, 3 Bos. & P. 147. (b) Holmes v. Jaques, L. R. 1 Q. B. 376. (c) Order xvi. r. 9. (d) Except to represent a defendant heir-at-law or next of kin in the cases provided for by Ord. 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. Metro- (e) Subject to some technical (f) Termes de la Ley, tit. Chose in Action. Right to sue on con tract not |