appeared that, after a marriage, the fathers of the husband and wife agreed together to pay each a sum of money to the husband, and they also agreed that the husband should have full power to sue for the money; it was held, nevertheless, that the husband, being no party to the agreement, could not sue upon it. in inter The question who are the parties to a contract, where the Contracts contract is made in writing, is, in general, determined by the in writing written terms. Where an indenture is made inter partes, partes. the express mention of the parties to the contract negatives the existence of any other parties. Those persons only can acquire a right or incur a liability, or can sue or be sued under the indenture, who are named or described in it as parties (a). An indenture of lease was expressed to be made between "A. for and on behalf of B. on the one part and C. on the other part," and A. executed the deed in his own name; it was held that B. could not maintain an action upon the covenants in the deed, although the covenants were expressed to be made by C. to and with B (b). A. and B. by indenture demised to D., who by the same deed covenanted with A. B. and E. (E. not being named amongst the parties to the deed), to pay rent to E., to repair, etc.; it was held that E., being a stranger to the deed, could not join with A. and B. in an action for non-performance of the covenants (c). A composition deed specified the parties of the first part as "the several persons whose names and seals are subscribed and affixed in the schedule hereunder written, being creditors executing these presents;" it was held that creditors who did not execute the deed were not parties to the deed within the above description, and could not take advantage of the covenants, although expressed to be made with the parties of the first part and all other creditors, and (a) 2 Inst. 673; see the note to Pigott v. Thompson, 3 B. & P. 147, 149 (a); Beckham v. Drake, 9 M. & W. 79, 95; Chesterfield Silkstone Colliery Co. v. Hawkins, 3 H. & C.677; 34 L. J. Ex. 121. (b) Berkeley v. Hardy, B. & C. 355; and see Appleton v. Binks, 5 East, 148. (c) Lord Southampton v. Brown, 6 B. & C. 718. Contracts in writing inter partes. so were not on an equality with the executing creditors; and that therefore the deed was not valid against non-executing creditors, under the Bankruptcy Act, 1861, s. 192 (a); but upon a similar deed expressly made with "all the creditors" and in which the debtor covenanted with each creditor severally, it was held that all the creditors were parties to the deed, and could sue upon the covenants (b). If a deed is made in the name of a corporation and sealed with the common seal, members of the corporation cannot sue upon it in their individual characters, though they are mentioned by name in the deed as parties in their official capacity, because they are not parties to it individually (c). But parties to a deed may be designated by the name or description which they use for their trade or business, without mentioning their own proper names. Thus, where a deed was made with "The City Investment and Advance Company," and it appeared that two individuals carried on a business in that name and were intended in the deed by that description, it was held that they were parties to the deed in their individual characters (d). So, where a bond was made in favour of " Widow Moller and Son," the plaintiffs, who were proved to be the persons meant by that name, were held entitled to sue upon it (e). In a composition deed made between the debtor of the one part and "all the creditors" of the other part, the creditors were held to be sufficiently designated as parties, and entitled to sue upon the covenants made by the debtor with the creditors (ƒ). Where a covenant is made in the form of a deed poll, which does not contain any formal statement of the parties to whom it is made, the covenantee appears as a party to the covenant merely from the designation of him by the covenantor; and it is not necessary that the covenantee should be named, but he may be designated by a sufficient de (a) Chesterfield and Midland Silkstone Colliery Co. v. Hawkins, 3 H. & C. 677; 34 L. J. Ex. 121; Gurrin v. Kopera, 3 H. & C. 694; 34 L. J. Ex. 128; and see Ex p. Cockburn, 33 L. J. B. 17. (b) Gresty v. Gibson, 4 H. & C. 28; L. Rep. 1 Ex. 112; 35 L. J. Ex. 74; Reeves v. Watts, L. R. 1 Q. B. 412; 35 L. J. Q. B. 171. (c) Cooch v. Goodman, 2 Q. B. 850. (d) Maugham v. Sharpe, 17 C. B. N. S. 443; 34 L. J. C. P. 19. (e) Moller v. Lambert, 2Camp. 548. (f) Gresty v. Gibson, 4 H. & C. 28; L. Rep. 1 Ex. 112; 35 L. J. Ex. 74; Reeves v. Watts, L. Rep. 1 Q. B. 412; and see supra. inter scription. A policy of insurance was made in the form of a Contracts deed poll, in which the insurers covenanted to pay the loss in writing and damage insured against, without specifying the cove- partes. nantee by name; it was held that the parties interested in the insurance were sufficiently designated to entitle them to sue upon the covenant (a). A simple contract in writing, expressed to be made inter partes, also impliedly excludes all parties not named or described in it as such; for to admit evidence to make a person a party to such an agreement who was not so named or described in it, would amount to altering the effect of a written. instrument by extrinsic evidence (b). But with simple contracts, except bills of exchange and promissory notes, if the persons named or described as the actual parties are agents for others whose names do not appear, extrinsic evidence may be admissible in order to entitle the principal to the benefit of the contract or to charge him with the liability (c). An exception to the rule that no person can sue upon a deed or agreement inter partes, except the parties to it, has been made by some statutes relating to public companies and other public bodies; for instance, by the Joint Stock Banking Companies Act, 7 Geo. IV. c. 46, s. 9, all proceedings at law or in equity, for or on behalf of such copartnerships, are to be prosecuted in the name of one of the public officers of the copartnership; and under this Act it is held that upon a covenant made to covenantees by name, as trustees of the company, the company is bound to sue by its public officer, and cannot sue otherwise (d). Another exception has been made to this rule by the Act to amend the law of real property (8 & 9 Vict. c. 106) which enacts by s. 5, "that under an indenture, executed after the 1st October, 1845, the benefit of a covenant respecting any tenements or hereditaments may be taken, although the taker thereof be not named a party to the same indenture." (a) Sunderland Marine Insurance Co. v. Kearney, 16 Q. B. 925; 20 L. J. Q. B. 417. (b) Robinson v. Judkins, 26 L. J. Ex. 56. (c) Beckham v. Drake, 9 M. & W. 79; 2 H. L. C. 579; post, p. 297, 302. (d) Chapman v. Milvain, 5 Ex. 61; and see like exceptions under other statutes, Smith v. Goldsworthy, 4 Q. B. 430; Cobham v. Holcombe, 8 C. B. N. S. 815. ૧ Liability of infant on contracts. Liability of infant for wrongs. Infants CHAP. II. SECT. II. CAPACITY OF PARTIES. Married Women 226 Persons in a State of Insanity... 247 234 Corporations... 250 A PERSON is presumed by law capable of being party to a contract until the contrary appears; but persons in some states or conditions, as infants, married women, and persons in a state of insanity; and persons of certain kinds as corporations, are affected by law with various degrees of incapacity in that respect, the nature and effect of which have now to be considered. Contracts with infants. A An infant, or person under the age of twenty-one years, cannot validly bind himself to another by contract, except for necessaries suitable to his age, condition, and wants. contract made by an infant, except for necessaries, may be avoided by him on the ground of his infancy; and in an action brought against him upon the contract, he may defend himself by pleading specially that at the time of making it he was an infant (a). The defence of infancy cannot be pleaded in actions for wrongs independent of contract; but it may be pleaded in all cases where the cause of action is substantially founded on a contract, though the declaration might be framed in the form of tort instead of in contract; so that the plaintiff cannot indirectly make the defendant liable on a contract made during infancy by merely changing the form of his declaration (b). But where the defendant has wrongfully obtained money of the plaintiff under such circumstances that the plaintiff is entitled to waive the wrong, and claim restitution of the money under an implied contract in an action for money received for his use, it has been held that the defendant cannot plead infancy in such action (e). (a) See Reg. Gen. 8, T. T. 1853. C. B. N. S. 45; 32 L. J. C. P. 189. infant on fraud. Where an infant has induced another party to contract Liability of with him by a fraudulent representation that he was of full contract inage, he is not estopped from asserting his infancy in order duced by to avoid the contract; nor can he be charged with the loss which may arise from the invalidity of the contract, as damage caused by his fraudulent representation, in an action founded on the fraud as a substantive wrong (a). In an action at law upon the contract, to which infancy is pleaded, the fraudulent misrepresentation does not constitute matter for replication upon equitable grounds; for infancy is an answer in equity, as well as at law, to any proceeding upon the contract (b). But a Court of Equity will not allow the legal privilege of infancy to be used for the purpose of fraud, and will compel restitution of what has been obtained by an infant through a contract induced by the fraudulent representation that he was of full age (c). infant in respect of Where a person by means of a contract becomes possessed Liability of of real estate or other permanent property to which certain obligations are incident, he remains liable to those obliga- property. tions as long as he continues possessed of the property; and he cannot avoid them simply on the ground that he was an infant at the time of making the contract under which he has acquired the property; in order to discharge himself from such obligations he must not only disaffirm the contract, but must also disclaim, and get rid of the property. Thus, if an infant lessee takes possession, he becomes liable to the rent and other obligations incident to the estate, so long as he remains in possession, and until he disagrees to the estate (). So, in an action against the registered holder of shares in a railway company for calls due upon the shares, the plea that when he was registered as the holder of the shares, and (a) Johnson v. Pye, 1 Lev. 169; 1 Keb. 913; Price v. Hewett, 8 Ex. 146; and see Liverpool Adelphi Loan Ass. v. Fairhurst, 9 Ex. 422; Wright v. Leonard, 11 C. B. N. S. 258; 30 L. J. C. P. 365. (b) Bartlett v. Wells, 1 B. & S. 836; 31 L. J. Q. B. 57. (c) Ib.; Ex p. Unity Joint Stock Banking Ass., 3 De G. & J. 63; 27 L. (d) Kirton v. Eliott, 2 Bulstr. 69; |