feparately from her husband, and with refpect to such separate trade, she is subject to the same liabilities as if single.

NUMBER IV.

(Referred to Vol. I. p. 34.)

Of the Rule, that a perfon can only ftipulate or promise for bimfelf.

THE text of the Inftitutes upon this fubject fays, that if one man promises that another fhall give or do any thing he is not bound, as if he undertakes that Titius fhall give five pounds, but if he engages to procure Titius to give five pounds, he is bound. Si quis alium daturum facturumve promiferit non obligabitur, veluti fi fpondeat Titium quinque aureos daturum ; quod fi effecturum fe ut Titius daret Spoponderit, obligatur. Vinnius in commenting upon this paffage, obferves, Noftris et multorum aliorum moribus qui factum alienum promittit, tacite intelligitur promittere fe curaturum aut effecturum ut alius det aut faciat. I conceive that the rule itself is no where formally adopted in the law of England, and can have no other effect than as it neceffarily refults from the natural reafon of the thing; and that if one man engages that an act shall be done by another, he is liable to damages in case it is not done, provided there are the other requifites for an obligatory contract. The distinction, however, is in a great measure verbal, as according to all the systems of jurifprudence, it becomes finally a question of intention, whether the party engaged perfonally that the act fhould be done, and meant to fubject himself to the fame responsibility in cafe of non-performance, as if the engagement related to an act of his own. With respect to one perfon receiving a promife for the benefit of another, it has been held that an action might be maintained by a daughter for non-performance of a promise made to her father for her benefit upon a confideration moving from the father. Dutton v. Poole, 1 Ventris 318. 332. T. Jones 103. the nearness of the relation between the father and the daughter was held fufficient to entitle her to maintain the action upon the promise to her father. Lord Mansfield has faid, that it was difficult to conceive how a doubt could be entertained upon the point (Corp. 837, Doug. 146,) but the decifion was certainly very anomalous; and in other cafes it has been held, that a person, for whose benefit a promife was made to another, could not maintain an action for the non-performance of it. 1 Ventris 6. 1 Str. 592. But I conceive, that according to the law

of

Numb. IV.] Of a Perfon ftipulating or promifing for another. 33

of England, (differing in this refpect from the civil law,) an action may be maintained by the perfon to whom the promise was made, although the benefit resulting from it was intended for another.

In the cafe of Marchington v. Vernon, at nifi prius, T. 27 Geo. 3. B. R. 1 Bof. & P. 101. n. where the holder of a bill recovered against the affignees of the drawee, upon their promife of payment made to the drawer, it was faid by Buller, that, independent of the rules which prevail in mercantile transactions, if a perfon makes a promise to another for the benefit of a third, that third perfon may maintain an action upon it. The reporters last mentioned truly obferve, vol. 3. 149. n. that with respect to the right of a third perfon, to fue upon a parol promife made to another for his benefit, there is great contradiction amongst the older cases, all of which are collected, 1 Vin. ab. fo. 333 to 337. Action of Affumpfit. See Feltmakers', Comp. v. Davis, 1 Bof. 98. In Pigot v. Thompson, 3 Bof. 147. it was decided, that upon an agreement made with the commiffioners of a turnpike road, to take the toll at a certain rent to be paid to the treasurer, no action could be maintained by the treasurer, but that decision was rather founded upon a conftruction of the intention, than upon the application of any general rule, as to the right of one perfon to fue upon the promise made for his benefit to another.

In Martyn v. Hinde, Cowp. 437. it was contended that a certificate given by a rector to the bishop, upon the appointment of curate, undertaking to continue him at a certain falary until otherwise provided for, was merely a contract with the bishop, and for his indemnity, upon which no action could be maintained by the curate; but it was truly answered by the court, that this was not a contract with the bifhop, but a certificate and affurance to him of a matter of fact, i. e. it was evidence of an actual contract with, and promise to the curate.

Where an engagement is made by deed, or otherwise, to A, for the benefit and on the behalf of B, and the action is brought by A, or the engagement is performed to him, the confequent obligations between A and B depend upon principles unconnected with, and irrelevant to the prefent difcuffion; which is confined to the obligation, and responsibility of the original debtor.

In equity, it is a leading principle, that all the perfons concerned in interest must be parties in the fuit, and an arrangement is made according to the fubftance of the tranfaction, and the real interefts of the perfons entitled, without reference to the mode or circumstances of the contract, which are only regarded as inftrumental to the intereft; and it is the peculiar proVOL. II. vince

D

vince and characteristic diftinction of thofe courts, to obviate the technical difficulties which might arife from the mode and form of the tranfaction in a court of law.

The remaining topic of confideration, is the recognition fometimes admitted by courts of law, of the real and fubftantial interest in the fuit, and of the character of the person actually interested, as diftinct from the perfon who inftitutes the fuit, as upon an engagement made to himfelf.

Where a bond was made to A for the benefit of B, it was held that the latter could neither fue upon it, nor release it. Offley v. Ward, 1 Lev. 235. The fame rule would apply in the cafe of an affignment of a bond, by the obligee to a third person: the action must be brought in the name of the original obligee. In these cafes, if the obligee releafed the obligor, it might be pleaded as a defence by the obligor, and I apprehend that in general it could be no answer to ftate upon the record the original trust or the fubfequent affignment, but in the exercise of the summary jurisdiction which the courts poffefs over the proceedings before them, where the obligee by collufion with the obligor gave him a release, it was held that it might be fet afide, and also that the obligor could not be allowed to plead payment to the obligee. Legh v. Legh, Bof. 447. I conceive, that if there is a release from, or fatisfaction to the party actually interefted, the court in the fummary exercise of its difcretionary power, will stay the proceedings of the person nominally entitled.

In Bottomley and Brook, and Rudge v. Birch, cited 7 T. R. 664, it was held, that a defendant might plead that the bond on which he was fued was given to the obligee in trust for another person, which other perfon was indebted in a larger amount to the defendant.

In Winch v. Kelly, 1 T. R. 619, it was pleaded that the plaintiff had become a bankrupt; to which he replied that he had previoufly affigned over his debt to another person for a valuable confideration, and the replication was held to be good. The fame principle muft apply to the cafe of an engagement being originally made to one perfon for the benefit of another.

Where a contract is made with a factor, an action may be brought upon it, either in his own name, or in the name of the principal. In the latter cafe, it is confidered as the transaction of the principal throughout, and no particular obfervations are appli cable to it, connected with the prefent difcuffion. With refpect to actions in the name of the factor, it was pleaded to a de claration on a policy of infurance, that the perfons interested were alien enemies; to this it was replied, that the policies were effected

before

Numb. IV.] Of a Perfon ftipulating or promising for another. 35

before the war, and that the parties interested were indebted to the plaintiff, who had a lien on the monies to be recovered in the action, to a greater amount than the fum claimed, and judgment was given for the defendant. Brandon v. Nefbett, 6 T. R. 23. But this cafe proceeding upon principles of public policy, is no authority in refpect to general cafes not affected by the fame confideration, and does not establish any general propofition, that a personal disability in the party beneficially entitled, is a bar to an action inftituted on his behalf, by another to whom an engagement is nominally made.

An action was brought in the name of a confignor of goods as factor, against a carrier for damage occafioned by neglect. A letter written by the plaintiff was adduced in exculpation of the defendant: the effect of this was objected to, as it appeared by the fame letter that other perfons were the real owners of the goods, and that they had indemnified the plaintiff; and it was argued that the persons interested ought not to be prejudiced by the admission of their agent; but it was held that the admission of the plaintiff on the record must be evidence in the cause. Bauerman v. Radenius, 7 T. R. 663.

Lord Kenyon in that cafe made feveral valuable obfervations, as to the impropriety of innovating upon the fettled principles of the law, in order to meet the exigencies of particular convenience.

I hope that I fhall be excufed for having extended this difcuffion fo far beyond the limits of the subject which immediately occafioned it."

NUMBER V.

(Referred to, Vol. I. p. 53.)

Of the Interpretation of Agreements.

As every contract derives its effect from the intention of the parties, that intention, as expressed or inferred, must be the ground and principle of every decision respecting its operation and extent, and the grand object of confideration in every question with regard to its conftruction.

Mr. Powell defines conftruction to be the drawing an inference by the act of reafon, as to the intent of an inftrument, from given cir cumftances, upon principles deduced from men's general motives, conduct, and action.

This definition may perhaps not be fufficiently complete, inaf much as the term inftrumcnt generally implies fomething reduced into writing, whereas conftruction is equally neceffary to afcertain the

meaning of engagements merely verbal. In other respects it appears to be perfectly accurate. The Treatife of Equity defines interpretation to be the collection of the meaning out of figns moft probable.

Where an agreement is of known and general nature, it is unneceffary to exprefs the circumftances which are commonly incident to it; these are neceffarily prefumed to be in the contemplation of the parties, and if any variation is intended, that must be particularly mentioned; long and uninterrupted usage may afford certainty to expreffions which are vague and inaccurate in themfelves, and give effect to inftruments which would be otherwise unintelligible and void. This is the cafe with regard to policies of infurance, which modern judges have agreed in confidering as very inaccurate, and imperfect in their original ftructure, but as having acquired a definite fignification from the long period during which the fame form has fubfifted, and the general adoption which it has received.

But, in afcribing the true conftruction to contracts of a detached and independent nature, or to thofe variations which are occafionally and fpecially introduced in regard to contracts in general use, and of definite fignification, confiderable difficulties frequently arife, the folution of which muft chicfly depend upon confidering the principal object of the contracting parties, the greater fubferviency to that object in adopting the one or the other conftruction of ambiguous phrafe; the mutual relation of the different parts, with the mutual illuftration which they may contribute or receive; and in cafes where a manifeft abfurdity or repugnance may refult from a literal construction of the terms employed by reftraining or extending their general fignification, according to the evident reafon and juftice of the fubject, and the intention which may from thence be reasonably inferred.

Wherever a fpecial agreement is entered into, it is of importance. diftinctly to exprefs the object which is in view, not refting too much upon the force and efficacy of a general expreffion applied to an unusual subject; and alfo to confider and provide for the different contingencies which may eventually arise.

The want of this caution has often been productive of considerable confufion, and Lord Mansfield has in feveral instances taken notice of the want of accuracy in defcribing the intended import of fpecial agreements, or in fupperadding particular claufes in mercantile tranfactions; though it is agreed that they ought to liave a liberal interpretation, and are not restricted to any technical expreffions. Speaking of the effect of the common agreement in a policy to return part of the premium, if the ship fails with con