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whereof Robert Pitman was master on the

one party, and Vandenstene on the other party. "In which indenture, the plaintiff did cove"nant with the said Vandenstene and Robert "Pitman, and also Vandenstene covenanted "with the plaintiff and Robert Pitman, and "bound themselves to the plaintiff and "Robert Pitman for the performance of cove“nants in six hundred pounds; and the conclusion of the said indenture was, 'In witness whereof the said parties abovesaid 'to these present indentures have put ' their seals'-and the said Robert Pitman "to the said indenture put his hand and seal, and delivered the same. The defen"dant in bar of the said action pleaded the release of Pitman, &c. whereupon the plain"tiff demurred, and it was adjudged, that "the release of Pitman did not bar the plain

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tiff, because he was no party to the inden"ture-and the diversity was taken and "agreed between an indenture reciprocal be"tween parties on the one side, and parties "on the other side, as this was; for there no

bond, covenant, or grant can be made to "or with any that is not a party to the deed. "But where the deed indented is not recipro

cal, but is without a between, &c. as omni"bus Christi fidelibus, &c. there a bond, covenant, or grant, may be made to divers seve"ral persons."

The same case is reported by the name

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of East, Skidmore, and Froame v. Vandsteven, by Croke (h), thus, "Covenant for not performing certain conditions in an in"denture between the plaintiffs, master of "the good ship of A, of which Robert Pit"man was owner of the one part, and the "defendant on the other part, and the con"clusion of the indenture was, in cujus rei testimonium, the parties aforesaid to these presents have set their hands and seals,and "all the plaintiffs, and the said Robert Pitman, set their seals to one part; and the "defendant to the other part; and in the "indenture there were divers covenants to "be performed by the plaintiffs, and by "the said Robert Pitman to the defendant, "and è converso; and there was a clause in "the indenture that the plaintiffs and the " said Robert Pitman bound themselves to "the defendant to perform the covenants; "the defendant pleads that the indenture

was delivered to the plaintiffs, and the "said Thomas Pitman (and so mistakes "Thomas for Robert) pleads the release of "the said Thomas of all covenants; and thereupon the plaintiffs demurred for two

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1st, The release was pleaded by T. P., "whereas no such man was named in the

{h) Cro. Eliz.56.

"indenture, and this was held a great mis« take and without defence ; and the roll was commanded to be searched.

2d, And the chief matter was, admitting the name had been right pleaded, and "that Robert Pitman had released, if this "release was good. Coke argued that foras"much that only the plaintiffs in the pre"mises of the indenture were parties of the one part, and the defendant of the other,

although Robert Pitman is afterwards nam"ed in the deed, it is a void deed as to him, "and no covenant made to him or by him "is good, for he is a stranger to it, and his sealing and delivery is not material; as if "I. S. by indenture between him of the one

part, and I.D. of the other, demiseth lands "to I. D. and A. B., it is void to A. B.; “ and he answered the case as put by Godfrey of the other side, 4 Edw. 2. obliga ❝tion; (an obligation was made by I.S. and "ad majorem rei securitatem inveni I. D. fide 'jussorem, and I. D. put his seal to it: this "was his deed.) Which case he agreed for it "isnot mentioned whose deed it is; and so it "is the deed of both, which are named and

put their seals, &c. So when an incum"bent grants a rent by the assent of patron "and ordinary, and they put their seals to it, ،، this is not their deed, but only their agree66 ment to it. And the case of 39 Edw. 3. "c. 9. is upon the same reason of 4 Edw.

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"2. And in Michaelmas, 29 and 30, it was "adjudged for the plaintiffs, and the principal cause was, the misnomer, which the "court held could not be amended. But Wray said, they conceived the matter in "law, to be also for the plaintiffs."

And in the First Institute (), this passage may be found: "And it is to be known, "that a deed of feoffment, beginning, omni"bus Christi, fidelibus, &c. or sciant presentes "et futuri, &c. or the like, a letter of attor

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ney may be contained in such a deed; "for one continent may contain divers "deeds to severall persons; but if it be by "indenture between the feoffor on the one

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part, and the feoffee on the other part, "there a letter of attorney in such a deed, "is not good, unless the attorney be made "a party in the deed indented."

Howeyer, on the rule communis error facit jus, it has been decided that even in an indenture between parties, an attorney may be appointed to deliver seisin, although the attorney be not named as one of the parties to the indenture.

Thus in trespass (k) upon evidence, it was moved by Coke, attorney general, where an indenture of bargain and sale between I. S. on the one part, and J. D. on the other

(i) 1 Inst. 626.

(k) Cro. Eliz. 905,

part, and in the end thereof, a letter of attorney to J. M. to make livery, was produced in court, that it should be void, because the attorney was not party to the deed. But all the court held it to be good enough; for in many such indentures, are such letters of attorney made, and it is a common assurance, and therefore good: The same point is reported by Noy (k)

in these terms:

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Upon evidence, it was moved by Cook, that an indenture of feoffment, and letter "of attorney in it, is not good to a stranger to make livery. But otherwise of a “deed-poll, because in that twenty men may be made parties one after another. "But in an indenture, those between whom "it is made, only are parties to it. But by the court that it is good enough, and "that it is a common case and a common " use."

This decision or opinion, so far from ruling the general doctrine, treats a case appointing an attorney as an exception to the general rule. That rule is illustrated and even proved by the cases to be now introduced.

In Windsmore, lessee of Edward Long, plaintiff, v. Nicholas Hobart (1), defendant,

(k) Noy, 49.

(2) Hob. 313,