Cummings v. Klapp

5 Watts & Serg. 511

• Court: Supreme Court of Pennsylvania
• Decided: July 15, 1843
• Status: Published

Opinion

Per Curiam.

It is true that an action on a promise lies in the name of the party beneficially interested in it; but here we discover no interest in the promise, on the part of the plaintiff, who had his remedy against the constable for whose security the promise was made to protect him against that very remedy by paying the money at a given day. The constable, not the plaintiff, gave the indulgence; and it was from the constable, therefore, that the consideration moved- The plaintiff gave the constable no authority to take a security, and cannot make the act his own by adoption ; for the maxim that subsequent ratification is equivalent to precedent authority, is applicable exclusively to acts done in the principal’s name. In this instance, the promise was made to the constable in terms, when he was not professing to act as the plaintiff’s agent; and it was not in the nature of a bail-bond, which is taken for the plaintiff’s use. It was made to the constable for his own use because it was to pay, not only the debt, but the costs, to which the plaintiff had no claim; and as the contract was entire, the constable alone could sue for it. The evidence, therefore, was properly rejected.

Judgment affirmed.