the following words:-" Gentlemen,-On behalf of Nissen and Co., of Riga, I hereby guarantee that the shipment of hemp in the Carolina will be found to be in conformity with the revenue laws of Great Britain, so that no impediment shall arise on the importation thereof, or that in default thereof the consequences shall rest with Nissen and Co. ;" and it was held, that as it did not appear that Nissen and Co. had authorized the defendant to give this guarantee on their behalf, and there was nothing to show that they could be sued upon it, the guarantee must be taken to be the personal guarantee of the defendant, and not the guarantee of Nissen and Co. (r). The party on whose behalf the guarantee was made in this case resided, it will be seen, abroad; and the fair inference from the evidence was, that the personal security of the promisor was relied upon and intended to be given, and not that of the person on whose behalf the undertaking was stated to be made.

The solicitor of the London creditors of a bankrupt wrote to the solicitor of the country creditors of the same bankrupt in the following terms:- I am willing on behalf of the London creditors to bear twothirds of the expense of resisting Mr. K's proof under the commission, and of investigating the accounts of the assignees . . . . and I hereby undertake to bear and pay on behalf of these creditors, two-thirds of the expenses incident thereto accordingly ;" and in another letter he added, "I have no objection to bear, as before, the proportion of expense, &c. ;" and it was held, that as there was nothing upon the face of the correspondence leading to the conclusion that the London creditors had authorized the undertaking, and nothing to show that they were individually known to the plaintiff, or had in any way interfered in the transaction, and rendered themselves personally liable, it must be taken that the solicitor was intended to be the paymaster, and that his personal liability was relied upon, and intended to be given, and not that of the London creditors at large. (s)

The attorneys in a cause signed an agreement purporting to be made by them as the "attorneys of the plaintiff and defendant," whereby they "did personally undertake and agree" that the record should be withdrawn, and that certain things should be done by the plaintiff and defendant respectively, and it was held that the attorneys were responsible for the performance of the things stipulated to be done. "There is nothing," observes the Court, "in this agreement which can in anyway bind the client; he does not undertake to pay. What is the use of the word personally unless

(r) Redhead v. Cator, 1 Stark. 14.

(s) Hall v. Ashurst, 1 Cr. & M. 714.

it binds the individual signing the paper? If the defendant only meant to bind the client, it can hardly be supposed that he would not have so expressed himself. Here the principal is out of the question; and it is highly probable that the parties would not have trusted the client, and, therefore, stipulated for the personal undertaking of the attorney. Suppose the client were sued upon this undertaking, he would have a right to say, 'I never authorized my attorney to do this; it is true I have given him a general authority to do the best for me; but I do not think this is the best thing he could have done.' We think that when an attorney says, 'I personally undertake to do so and so, he is pledging his personal responsibility.'" (t) It is out of the scope of his authority as attorney, and the undertaking, therefore, cannot bind the client.

The solicitors under a commission of bankruptcy, wishing to get rid of a distress, undertook, "as solicitors to the assignees," to pay the landlord his rent, and it was held that they were personally liable on their undertaking. "Many persons," observe the Chief Justice and Judges of the Court of King's Bench," will deal with solicitors and professional men, (from the confidence they have in their known character and situation in life,) who will not deal with an unknown client." "If the defendants are not personally liable, nobody is bound by this undertaking, for it is perfectly clear that the assignees are not bound. The import of the instrument is, not that the assignees undertake through the medium of the defendants, as their solicitors, but that they the defendants themselves as solicitors undertake. The term as solicitors is merely descriptive

of the character they fill." (u)

A landlord having distrained upon the goods and chattels of his tenant, a bankrupt, the assignee of the estate gave to the plaintiff the following undertaking. "As assignee of the estate and effects of Richard Lord, a bankrupt, I hereby undertake, in consideration of Mrs. Stephens (the plaintiff) withdrawing the person put into possession of Mr. Lord's effects, under a distress for the sum of £350. . that the said sum of

£350 shall be paid to Mr. Stephen out of the proceeds of the sale of the same effects." The plaintiff then withdrew the distress, but before the defendant could obtain any part of the bankrupt's effects, the fiat was annulled, and it was held, in an action brought by the plaintiff on the undertaking, that the defendant had made himself personally liable thereon. (v) A person, also, who professes upon the face of an agreement in writing

(t) Per Curiam Iveson v. Connington, 2 D. & R. 309, In re Gee, 10 Jur. 694.

(u) Per Abbott, C. J. Holroyd, J., & Best, J. Burrell v. Jones, 3 B. & Ald. 47-51.

(v) Stephens v. Pell, 4 Tyr. 6. 2 Myl. & K. 335, nom. Pell v. Stephens, 2 Cr. & Mees. 710,

S. C.

to be acting for and on behalf of another, may, by express words, render himself personally liable as a surety for the performance of some act by the party on whose account he professes to act. (w)

An attorney, acting on behalf of his client in order to stave off legal proceedings which were threatened to be taken against the client for the recovery of a debt due from the latter to the plaintiff, wrote a letter to the plaintiff, inclosing his client's acceptance for the amount of the debt, and, in order to induce the plaintiff to take this acceptance and suspend the right of action during the time the bill had to run, added, "I will see it paid," and it was held that the attorney was personally liable upon his undertaking as a surety after the default of his client, the principal debtor, to take up and pay the bill when it came to maturity. (x)

By a written agreement expressed to be made by the defendant on behalf of E. B. of the one part, and the plaintiff of the other part, the defendant agreed to execute unto the plaintiff a lease of certain messuages and premises, and it was held that the defendant was personally responsible upon his undertaking for the execution of the lease so agreed to be granted. (y)

Bills of exchange and promissory notes expressed to be accepted, made, or indorsed, on behalf of a THIRD PERSON who is named on the face of the instrument, will not render the acceptor, maker, or indorser, personally liable, provided he has authority from such person to sign the instrument in his behalf. (z) But if no such authority has been expressly, or impliedly given, the party so signing the instrument is responsible as the really contracting party, and the same result naturally follows if there be no principal to resort to. A person cannot, merely by assigning to himself a representative character, escape from personal liability in respect of his contracts. He may undertake or promise as "solicitor," " attorney," "assignee," "director," "overseer," "guardian," "churchwarden," "trustee," or "commissioner," but unless his contracts in those capacities bind some known third party, such words are mere matter of description, and the irresistible conclusion is, that the party with whom he has contracted must have looked to the personal security of the promisor for the due performance of the contract. Somebody must have been intended to be bound by the contract, and if there is no third party to resort to, the person so contracting or promising as "trustee," "commissioner," &c., is the party to be charged.

(w) Nostris, et alirum moribus, quæ factum alienum promittit, tacite intelligitur promittere se curaturum aut effecturum, ut alius det, aut faciat, Vin. Com, 706.

(x) Emmett v. Kearns, 7 Sc. 687, ante p. 109, 110.

(y) Talbot v. Godbolt, Yelv. 137.

(2) Ex parte Buckley, 14 M. & W. 469.

A bill of exchange was drawn upon the defendant by the description of "Mr. H. Bishop, cashier of the York Buildings Company," directing him to place the same to the account of the York Buildings Company," and the bill was accepted by the defendant as "cashier" of the company, and it was held that he was, nevertheless, personally liable upon it. (a)

An inclosure act empowered certain commissioners, appointed under the act to make a rate to defray the expenses of passing and executing the act, and enacted that persons advancing money for the purposes of the act should be repaid out of the first money raised by the commissioners. The commissioners drew drafts upon their bankers in the following form :⚫ pay J. M., or bearer, £- on account of the public drainage, and place the same to our account as commissioners, &c." And it was held that the commissioners themselves were personally responsible for the money advanced upon such drafts. (b)

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If a bill of exchange be endorsed to certain persons "as executors," and they again indorse the bill without qualification of their liability, they will be individually responsible upon their indorsement. (c) So if they make promissory notes "as executors," "churchwardens," "overseers," &c., they will be responsible upon such notes. Two executors gave a promissory note on account of a debt due from their testator in the following form:— "As executors to the late T. T. we severally and jointly promise to pay to Mr. N. C. the sum of £200 on demand, with lawful interest thereon." And it was held that by the giving of such a note the executors had made the debt their own, and that as they had not limited their liability by any express declaration that the money was to be paid out of the estate of their testator, when they should have assets in their hands for that purpose, they were themselves personally responsible for the amount of the note. (d)

N. lent the parish of C. the sum of £200, to secure the repayment of which the churchwardens and overseer gave promissory notes to C., whereby "as churchwardens and overseers" they promised to pay to C., or order, the sum of £200 with interest, and it was held that they were personally liable upon the notes. (e)

(a) Thomas v. Bishop, 2 Str. 955. Cas, temp. Hardwick, 1, s. c.

(b) Eaton v. Bell, 5 B & Ald. 34.

(c) Buller, J. King v. Thom, 1 T. R. 489.

(d) Childs v. Monins, 2 B. & B. 460, 5 Moo. 282, s. c.

(e) Crew v. Pettit, 3 N. & M. 456, 1 Ad. & E. 196, s. c.

SECTION III.

ORAL CONTRACTS AND IMPLIED CONTRACTS.

Liabilities ex Contractu of TRUSTEES and COMMISSIONERS of PUBLIC WORKS, and MANAGING COMMITTEES of clubs and eleemosynary institutions. When a man orders goods from tradesmen, or directs things to be done by workmen and servants for himself and for his own use and benefit, there is of course no doubt or question as to his liability upon the ordinary implied promise of payment and remuneration, whether the orders and directions were given by himself personally, or through the medium of a third party, whom he employed for the purpose. When the orders are for goods to be furnished, or things to be done for some third party whose name is given, the question to be asked and answered in order to determine the liability is," to whom was the credit given-to the party giving the orders, or to the person to whom the goods were to be delivered, or for whom the things were to be done." If the orders were executed on the credit of the former, and on the belief that he would be the paymaster, then he is of course the party to be charged; if on the credit of the latter, then the latter is the person to be sued as the real debtor and the principal in the transaction. When there is no third party to resort to for payment, the irresistible conclusion is, that the credit was given to the person by whose directions the goods were furnished and the things done, and he is, therefore, responsible for the payment of the price of them.

TRUSTEES and COMMISSIONERS of PUBLICK WORKS for example are personally responsible upon contracts for work and labour, and the supply of materials entered into by them in their official capacity, in the promotion of the undertaking intrusted to their management. They have generally power to raise tolls or to impose assessments and create a fund to defray the expenses they are authorized to incur, and they ought, therefore, to avoid entering into contracts until they have money in hand, or have ascertained that they have resources at their command sufficient to cover their expenditure. The parties whom they employ cannot know the state of the funds at their disposal, nor is it their business to inquire; the credit is always presumed to be given to the commissioners or trustees, by whose orders the party seeking for remuneration has been employed, unless

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