the company by the master for the loss of his portmanteau, on the ground that the contract was between the company and the servant. (x) And, where a telegraph company negligently mis-sent a message containing an offer for a cargo of ice to the vendor, in consequence of which the vendor incurred expense, it was held that he could not sue the telegraph company, because their contract was with the sender of the message and not with the receiver, although, if a sale had been effected, the vendor would, by the course of the trade, have been bound to re-pay the sender the cost of the message. (y)

34. Parties to contracts with bankers, warehousemen, and wharfingers.-If money is sent to the banker for the payment of certain debts, the consideration for a promise by the banker to pay over the money, pursuant to the directions he has received is said to move from the creditor whose particular debt is to be paid, and who is the object of the remittance; it being considered that the debtor is the agent of the creditor, and that the money is paid indirectly to the banker by the latter. (*)' But in all cases where money is sent to one person to be paid by him to another, to enable the person who is the object of the remittance to maintain an action against the remittee to recover the amount transmitted to him, there must be an express promise or assent on the part of the latter to pay over the money to the former, or to hold it to his use, inasmuch as the mandate is revocable so

(x) Becker v. The Great Eastern Ry. Co., L. R., 5 Q. B. 241. But it is difficult to understand why the plaintiff was not entitled to recover the value of the portmanteau on the ground that it was his property.

1

(1) Playford v. United Kingdom Telegraph Co., L. R. 4, Q. B. 706.

(2) Lilly v. Hays, 5 Ad & E. 548 Moore 2. Bushell, 27 L. J., Ex. 3 Noble v. Nat. Disct. Co.. 5 H & N. 228; 29 L. J., Ex. 210.

Story on Cont. § 487.

long as no such assent, promise, or engagement, has been given or entered into. (a) When, however, the assent has been given, and the attornment made the order to pay the money, if founded upon a precedent debt or other good consideration, becomes irrevocable, (b)1 the creditor looks no longer to the security of his original debtor, but relies on the assent of the remittee, which can not be retracted, and is entitled to maintain an action against him for the amount received. (c) But, if the amount transmitted be a mere voluntary gift or donation, founded upon no precedent consideration, debt, or duty, the authority may be revoked at any time before the money is actually paid over by the remittee, (d) just as money, when paid by mistake to an agent, and placed by him to the account of his principal, but not paid over, may be recovered back by the party who has inadvertently transmitted it. (e) Subject to these qualifications, some of the old cases in Rolle's Abridgment, where it has been held that, if £20 be delivered to B to pay over to C, C can maintain an action against B to recover this money, or that, when goods are given by A to B, under an agreement that B shall pay £20 to C, that becomes a debt due to C, may still be considered

(a) Williams v. Everett, 14 East, 597. Fisher v. Miller, 7 Moore, 537. Baron v. Husband, 4 B. & Ad. 611. Howell v. Batt, 5 B. & Ad. 504; 2 N. & M. 381. Wedlake v. Hurley, 1 C. & J. 83. Grant v. Austen, 3 Price 58. Brind v. Hampshire, 1 M. & W. 373. Hill v. Royds, L. R. 8 Eq.

292.

(6) Winter v. Foweracres, 2 Roll. Rep. 39, 40. Robertson v. Fauntle

' Id.

roy, 8 Moore, 10, Atkin v. Barwick, I Str. 165. Hodgson v. Anderson, 3 B. & C. 842; 5 D. & R. 744. Walker v. Rostron, 9 M. & W. 411. Griffin v. Weatherby. L. R., 3 Q. B. 753.

(c) Best, C. J., Gibson v. Minet, 9 Moore, 36.

(d) Lyte v. Peny, Dyer, 49 a, b, r 7. Taylor v. Lendey, 9 East, 54. (e) Buller v. Harrison, 2 Cowp

565.

' Id.

good law. (f) Warehousemen, wharfingers, and bailees of goods, stand in the same situation as bankers and depositaries of money; and, when they have accepted a delivery order, presented to them by a purchaser, they become the bailees of the party mentioned in such order, and are liable to him upon their promise to hold the goods on his account and at his disposal. (g)1

35. Parties entitled to enforce contracts under seal. As a contract under seal requires no consideration to support it, the common law regarded only the instrument itself; and whenever a deed was expressed to be made between certain persons named in the premises of the instrument, or described therein as the contracting parties, those persons only and their privies claiming through them by blood, representation, or otherwise, could take advantage of it by way of action. (h) It mattered not that the deed was made for the exclusive benefit or use of other individuals named therein, and contained covenants with them for the performance of certain duties, if they had not been made parties to the contract they could not sue thereon, although they might have

(ƒ) Starkey v. Mylne, I R. Abr. p. 32, pl. 13. Disborne v. Denabie, ib., p. 30, 31, Z. pl. 5.

(g) Bryans v. Nix, 4 M. & W. 791.

(h) Chesterfield and Midland Silkstone Colliery Co. v. Hawkins, 3 H. & C. 657; 34 L. J., Ex. 121.

1 See Scudder v. Worster, 11 Cush. (Mass.) 573.

"Neither will the construction of the contract depend upon the question whether it is under seal (1 Hilliard on Cont. p 281); though it is sometimes held, that commercial contracts are to be construed with peculiar liberality (Bell v. Bruen, I How. 169). As to necessity of a consideration in a deed, see Cunningham v. Freeborn, 11 Wend. 248; Jackson v. Post, 15 Id. 588; Jackson v. Peck, 4 Id. 300; Jackson v. Zimmermann, 7 Id. 437; Minturn v. Seymour, 4 Johns. Ch. (N. Y.) 497; Acker v. Phoenix, 4 Paige, 305; Wood v. Jackson, 8 Wend. 9.

sealed and delivered the deed in common with those who were formally described as the parties to the instrument. () And although the 8 & 9 Vict. c. 106, enacted that, after the 1st of October, 1845, an immediate estate or interest, and the benefit of a condition or covenant respecting any tenements or hereditaments, might be taken, although the taker thereof was not named a party to the same indenture, (k) this enactment was held only to apply to covenants respecting any tenements or hereditaments; and, therefore, where a composition deed was expressed to be made between "the several persons whose names and seals are subscribed and affixed in the schedule hereunder written, being creditors executing these presents as parties of the first part," and other parties, it was held that creditors who did not execute the deed were not parties to it, and could not take advantage of the covenants contained therein, although they were expressed to be made with the parties of the first part and all other creditors. (7) But, where a similar deed was expressed to be made with all the creditors, it was held that all were parties, and could sue on the covenants, which were expressed to be made with each creditor severally. (m) When a deed was not inade reciprocal between parties of the one part and parties of the other part, but was expressed to be made generally "to all " in the nature of a deed poll, then, if any one or more persons contracted or coven

anted therein with a stranger, the latter might oring an action upon the deed against the parties so covennanting and contracting, provided they had duly sealed and executed the instrument, as in the case of an ordinary bond or obligation, "where fifty persons may be bound to one who is no party to the instrument, and all are liable to an action at his suit." (n)1

1

When there was no formal commencement to a deed describing who were the parties to it, and whose deed it was, it was held to be the deed of those who were named in the instrument as the contracting parties, and who put their seals to it. (0) But they must have been named or designated in the body of the deed; for no person could maintain an action upon a contract under seal unless he was named therein, either by his own name or by some acquired or adopted name; (p) and the contract or covenant must in express terms have been made with him. (7)'

36. Trustee and cestui que trust.—It was a fixed rule of law that the action upon a contract under seal, whether such contract was a deed inter partes or a deed poll, must be brought by the party with whom the contract was in terms made, and only by the person on whose behalf, or for whose benefit it had been made. (r) In those cases the party to whose use or for whose benefit the contract had been entered into had a remedy in equity against the person with

(n) Cooker v. Child, 2 Lev. 74.

(e) Nurse v. Framton, I Ld. Raym. 28. (p) Maughan v. Sharpe, 17 C. B. N. S. 443; 34 L. J., C. P. 19.

7) Sund. Marine Ins. Co. v. Kear.

ney, 16 Q. B. 935: 20 L. J., Q. B.,

421.

(r) Offly v. Warde, I Lev. 235. Barford v. Stuckey, 5 Moore, 23; 2 B. & B. 333.

'See Newell v. Hill, 2 Metc. 180; Kempton v. Walker, ç Verm. 191; Goodwin v. Gilbert, 9 Mass. 510.

'But see Note 1.