13.

153.

262.

10.112. 277.

5.

rson, 204, on, 206.

s, 65.

cer Lord), 267.

ur, 90.

all, 203.

38. 38 6.

,205, 206 d. 225.

244 b.

42. 130, 130 d

PARTIES TO ACTIONS.

PART I.

PLAINTIFFS IN ACTIONS EX CONTRACTU.

CHAPTER I.

GENERAL RULES.

Distinction between the legal and equitable Interest, ss. 1, 2. Who should sue on a Contract under Seal, ss. 3-6. Joinder of Parties to a Contract under Seal, ss. 7-9. Who should sue after Assignment of Land or a Chattel Real, ss. 10-12. After Assignment of Personalty, s. 13. After Assignment of a Contract under Seal, ss. 14, 15. Who should sue on a simple Contract, ss. 16-19. Joinder of Parties to a simple Contract, ss. 20-24. Who should sue after Assignment of a simple Contract, ss. 25—27.

1. THE accurate administration of justice requires, that the jurisdictions of the courts of law and of equity should be kept distinct ;(a) hence it is a general rule, that the party seeking redress at common law for a breach of contract, must be the party legally, and not merely equitably interested therein;(6) for our courts *of law only consider legal rights-our courts of equity have other rules, by which they sometimes super[ *2 ] sede those legal rules; and, in so doing, they act most beneficially for the subject.(c)

2. Hence, at law, no action lies by the cestui que trust against the trustee, (d) and the latter may set up the legal estate against the former; for, where there are two kinds of estates in different persons, the one equitable

(a) Per Lord Lyndhurst, C. B., Britten v. Perrott, 2 Cr. & M. 597.602.

(b) Per Ashhurst, J., Goodtitle v. Jones, 7 T. R. 50; Doe d. Hodsden v. Staple, 2 T. R. 684. See Story, Eq. Pl. s. 76; Per Bayley, J., Randoll v. Bell, 1 M. & S. 722; Per Lord Alvanley, C. J., Johnson v. Johnson, 3 B. & P. 169; Doe d. Hughes v. Jones, 9 M. & W. 372.*

(c) Per Lord Kenyon, C. J., Bauerman v. Radenius, 7 T. R. 663. 667; Foreman v. Jeyes, 5 B. & Ad. 837; and per Lord Lyndhurst, C. B., Britten v. Perrott, 2 Cr. & M. 601.

(d) Allen v. Imlett, Holt, N. P. C. 641; Mileham v. Eicke, 3 M. & W. 407 ;* post, s. 137.

♦Reprinted by T. & J. W. J., at $2.50 per vol. Eng. Com. Law Reps. 27.

and the other legal, the person having the equitable estate must call in
the legal estate, before he can recover in a court of law.(e) And so,
bond be given for payment of money to A., as trustee for B., the for
must sue thereon, although the latter has an equity to use his name
and, on a covenant to A. and B. jointly, for the benefit of A. who dies
and not A.'s representatives, must sue; (h) and although the cestui
trust may, after application to the trustee and the tender of a sufficien
demnity, bring an action *in his_name;(i) yet the plaintiff on
[ *3 ] record will be treated in all respects as the party in the cause,

any defence arising from his act or admission will in the absence of fi
or collusion be a defence against the cestui que trust suing in his name.
3. According to the principles of the common law and irrespectiv
the recent enactments relative to the transfer of real property, "where t
is such a deed as is technically called a deed inter partes, that is, a
importing to be between the persons who are named in it, as executing
same, and not as some deeds are, general to all people,' the immed
operation of the deed is to be confined to those persons who are parties to
no stranger to it can take under it, except by way of remainder; nor
any stranger sue upon any of the covenants it contains,”(l) even where
covenant is expressly for his benefit;(m) and if a party to the deed a
stranger are joint covenantees, it has been held that the latter cannot
in an action on the covenants.(n) Although where defend
[ *4]
by *deed assigned certain money not then due to A., in trus
pay B. a specified sum, and to retain the residue, and covenanted no
receive such money himself when due, an action for money had and
ceived was held to be maintainable against defendant at the suit of B
On a deed-poll, however, a stranger was held entitled to sue if expre
named therein.(p)

4. So far as relates to hereditaments, however, the above distinction now abolished; under an indenture executed after the 1st of October, 18 an immediate estate and interest in any tenements or hereditaments,

(e) Doe d. Shewen v. Wroot, 5 East, 137, 138; Goodtitle v. Jones, 7 T. R. 50, 51. (g) Offly v. Warde, 1 Lev. 235; Shack v. Anthony, 1 M. & S. 575; Scholey v. Mea 7 East, 148; Lamb v. Vice, 6 M. & W. 472; Evans v. Cromlington, Carth. 5. (h) Anderson v. Martindale, 1 East, 497.

(i) See Spicer v. Todd, 2 Cr. & J. 166, per Lord Lyndhurst, C. B.; recognised, Orch v. Coulsting, 6 Scott, N. R. 843; Auster v. Holland, 15 L. J., N. S., Q. B. 229. (k) Gibson v. Winter, 5 B. & Ad. 96 ; Bauerman v. Radenius, 7 T. R. 663. 666 ; C v. D'Aeth, Id. 670, n. (b); Alner v. George, 1 Camp. 392; May v. Taylor, 6 Scott R. 974; Per Parke, B., Wilkinson v. Lindo, 7 M. & W. 87 ;* Älner v. George, 1 Ca 392.

(1) Per Lord Ellenborough, C. J., Storer v. Gordon, 3 M. & S. 322; Barford v. Stuck 2 B. & B. 333;c Bushell v. Beavan, 1 Bing. N. C. 120; Metcalfe v. Rycroft, 6 M. & S. Platt on Covenants, 7.

(m) Ex parte Richardson, 14 Ves. jun. 187; Berkeley v. Hardy, 5 B. & C. 355. (n) Lord Southampton v. Brown, 6 B. & C. 718.

(0) Pooley v. Goodwin, 4 A. & E. 94.

(p) Gilby v. Copley, 3 Lev. 139; Cooker v. Child, 2 Lev. 74; and see Berkeley v. Ha 5 B. & C. 357, 358, where this distinction between a deed-poll and an indenture was down and admitted in the argument; Com. Dig. Covenant (A. 1.); Green v. Horne, 1 Så 197; Platt on Covenants, 5.

Eng. Com. Law Reps. 27. cId. 6. Id. 27. Id. 13. Id. 31. Id. 11. *Reprinted by T. & J. W. J., at $2.50.