5. At Common Law, if an agent makes a contract for

his principal by indenture, the principal is not entitled to

sue, or liable to be sued upon it, unless the agent executes

the indenture in the name of his principal.

WiUcs V. Biich (1802), 2 East. 142 ; it was held in this

в– case that an agent who executes a deed inter partes

under a power of attorney, must, in order to make his

principal entitled and liable upon it, execute it in the name

в– of the principal ; but if that is done, it does not matter

whether the agent signs " A. B. by his attorney C. D.," or

" C. D. for A. B, ; " for in either case the act of sealing and

delivering is done in the name of the principal, and whether

the agent puts his name first or last does not affect the

Validity of the act.

Berheleij v. Hardy (1826), 5 B. & C. 355 ; here it was

held that in the case of a deed inter partes no person

could maintain an action upon such deed unless he was

a party to it.

Beckham v. Drake (1841), 9 M. & W. 79 ; here it was

held that only those could sue or be sued upon an indenture

who are named or described in it as parties.

Montgomerie v. United Kingdom Mutual SteamsJiip

Association (1891), 1 Q. B. 370; here Wright, J., said;

•" He (the principal) may be excluded if the contract is made

by deed ioiter partes to which the principal is no party.

In that case by ancient rule of Common Law it does not

matter whether the person made a party is or is not an

agent. This, however, does not apply here, as this instru-

ment is a deed poll."

H

.98 TEE LAW OF AGENCY.

But now by section 46 of the Conveyancing Act, 1881

(4-i & 45 Vict. c. 41), it is provided as follows : — (1) The

donee of a power of attorney may, if he thinks fit, execute

or do any assurance, instrument or thing in and with his

own name and signature, and his own seal, where sealing is

required, by the authority of the donor of the power ; and

every assurance, instrument, and thing so executed and

done, shall be as effectual in law to all intents as if it had

been executed or done by the donee of the power in the

name and with the signature and seal of the donor thereof.

(2) This section applies to powers of attorney created by

Instrument executed either before or after the commence-

ment of this Act."

G. The same rule of Common Law applies in the case

of Bills of Exchange and Promissory Notes as in the case

of Indentures. And accordingly a principal is not entitled

or liable upon a bill or note executed by his agent, unless

the agent executes the instrument in the name of his

principal.

Leadbitter v. Farroiv {I^IQ), 5 M. & S. 345 ; in this case

Lord Ellenborough said ; " Is it not a universal rule that

a man who puts his name to a bill of exchange thereby

makes himself personally liable unless he states upon the-

face of the bill that he subscribes it for another or by

procuration of another, which are words of exclusion ?

Unless he plainly says, I am the mere scribe, he is liable."

UecJcham v. Drake (1841), 9 M. & W. 79 ; here Baron

Pai-ke said ; " The case of bills of exchange is an exception

which stands upon the Law Merchant, and promissory notes

another, for they are placed upon the same footing by the

в–єStatute of Anne. In neither of these can any but the

parties named in the instrument by their name or firm be

made liable to an action upon it."

Alexji/ader \. Slzev (1809), L. R. 4 Ex. 102; here the

defendant was sued upon a promissory note which ran as

RIGHTS AND DUTIES OF PRINCIPAL AND AGENT. 99

follows : " ВЈ1500. On demand I promise to pay Messrs.

Alexander and Company or order, etc. For Mistley,

Thorpe and Walton Railway Company. John Sizer,

Secretary." The Court held that the defendant was not

liable upon this note.

Button V. Marsh (1871), L. R. 6 Q. B. 861 ; here an

action was brought upon the following promissory note :

" We, the directors of the Isle of Man Slate Company,

Ltd., do promise to pay J. Dutton ВЈ1600 with interest at 6

per cent, till paid, for value received — (Signed) R. J. M.

J. H.

S. B.

H. J."