The Revised Statutes of Arkansas, ch. 119, Id. 1884, p. 972, provide: "SEC. 4933. Every action must be prosecuted in the name of the real party in interest, except as provided in Sectious 4935, 4936, and 4938."

California Courts sustain the right of the original creditor to bring his action, except in cases of merely incidental benefit: page 604, supra.

In Colorado such actions are supported, Justice WELLS, in Lehow v. Simonton (1877), 3 Colo. 346, after quoting numerous decisions pro and con, saying: "The doctrine of the last [those in favor of the action] quoted, while professedly an anomaly, seems to us the more convenient. It accords the remedy to the party who in most instances is chiefly interested to enforce the promise, and avoids multiplicity of actions. That it should occasion injustice to either party seems to us impossible." This is also the law in South Carolina, Thomson v. Gordon (1848), 3 Strobl. (S. C.) 196.

The Connecticut courts require the promise to be in writing, in compliance with the provisions of the Statute of Frauds: page 603, supra.

In Dakota the quesion is provided for by the Civil Code, which provides: "3499. A contract, made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it."

promisor and promisee to benefit such third person directly and primarily Wright v. Terry (1887), 23 Fla. 160.

The Code of Georgia, (Id. 1882) provides: 82747. If there be a valid consideration for the promise, it matters not from whom it is moved; the promisee may sustain his action, though a stranger to the consideration."

In Idaho, the Revised Statutes (Id. 1887, p. 380) provide: "SEC. 3221. A contract made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it."

In Illinois, the distinction between simple contracts and specialties, with reference to this right, is abolished by Section 19, ch. 110 of the Revised Statutes of that State as decided by the case of Dean v. Walker (1883), 107 Ill. 540, wherein Justice CRAIG, in delivering the opinion of the Court said:-"It is said a third party cannot bring an action in his own name on a contract under seal between third parties *** but ** the rule of the common law on that subject has been changed by Section 19, chapter 110 of the Revised Statutes of 1874, page 776, so that now it is immaterial, for the purpose of bringing the suit, whether the contract is under seal or not." The section referred to reads as follows:-" 19. Any deed, bond, note, covenant or other instrument under seal (except penal bonds) may be sued and declared upon or set off as heretofore, or in any form of action in which such instrument might have been sued and declared upon or set off if it had not been under seal, and demands upon simple contracts may be set-off against demands upon sealed instru

ments, judgments or decrees (Rev. Stat. ed. 1889, p. 1013).

In Hume v. Brower et al. (1887), 25 Ill. App. 130; PLEASANTS, P. J., said: "It has long been settled that a third party may sue on a simple contract entered into by others for his benefit, and upon such an agreement to pay all the debts of one party any creditor of such party may maintain an action." He cited Shober v. Kerting (1883), 107 Ill. 344; and Snell v. Ives (1877), 85 Id. 279 in support of his opinion, and followed Dean v. Walker (1883). 107 Ill. 540.

The Indiana courts uphold the original creditor's action if there is a sufficient consideration.

In Carnahan v. Tousey (1884), 93 Ind. 561, Justice Woods states the law as follows: "In an action upon a contract at law, strictly, privity of contract is essential to the right of action, but the rule in equity is different, and by a long line of decisions** this court has held that a promise of one person to another for the benefit of a third may be enforced in an action brought by the latter in his own name. To the same effect, Rodenbarger v. Bramblett (1881), 78 Id. 213. In Worley v. Sipe (1887), 11I Ind. 238, the action was brought by a married woman against the defendant to recover a sum of money which she alleged he had promised to pay her. It appeared that her husband was the owner of land, and sold the same to the defendant, the consideration being a promise on his part to pay a certain sum of money to the plaintiff. Chief Justice ZOLLARS held that there was a sufficient consideration for the promise, namely, the release by the plaintiff of her inchoate inter

est.

VOL. XXXVIII.—39

The Iowa courts also allow the original creditor to sue but put him to an election, so that a suit against the new promisor releases the original debtor: supra, page 600.

In Kansas, the rule may be taken as well settled, that third parties not privy to a contract, nor to its consideration, may sue upon it to enforce any stipulation made for their benefit: Anthony v. Herman (1875). 14 Kans. 494; Strong v. Marcy (1885). 33 Id. 109; Brenner v. Luth (1882). 28 Id. 583; Life Assurance Society v Welch (1881). 26 Id.362. The principles governing these cases are well put by Justice VALENTINE, in Burton v. Larkin (1887) 36 Kan. 246, quoting the case of Simon v. Brown (1877), 66 N. Y. 355, where the following language is used: "It is not every promise made by one to another, from the performance of which a benefit may inure to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited, We think this a correct statement of the law **Of course the name of the person to be benefited by the contract need not be given, if he is otherwise sufficiently described or designated. Indeed he may be one of a class of persons, if the class is sufficiently described or designated. In any case where the person to be benefited is in any manner sufficiently described or designated, he may sue upon the contract."

These views are supported by the case of The Plano Manufacturing Ca. v. Burrows (1888), 40 Kans. 361; and the very recent one of Mumper v. Kelley decided March 8, 1890 (Sup. Ct. Kans).

The Civil Code of Kentucky provides—“¿ 18. Every action must be prosecuted in the name of the real party in interest, except as provided in Section 21."

"21. A personal representative, guardian, curator, committee of a person of unsound mind, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, a receiver appointed by a court, the assignee of a bankrupt, or a person expressly authorized by statute to do so, may bring an action without joining with him the person for whose benefit it is prosecuted."

In Allen v. Thomas (1860), 3 Met. (Ky.) 198 the Court upheld the doctrine (that the creditor might sue), as "well settled." The case of Smith v. Smith (1869), 3 Bush. (Ky.) 625 also supports the rule: there the court relied upon the above section, and held that section 33, (Revised Code, 1888, 21) did "not take the right from the real party in interest to bring the suit in his own name."

In Louisiana, the cases of The N. O. St. Joseph's Association v. Magnier (1861), 16 La. Ann. 338, and Ferguson's Succession (1863), 17 Id. 255; and the Civil Code of 1870, Art. 1890, and the Code of practice, Art. 35, supra, page 601, support the right of a third party to sue upon the contract.

The Maine courts proceed upon the ground of an implied promise and a consequent release of the original debtor: page 599, supra.

In Maryland, the case of Coates & Brother v. The Penn. Fire Ins. Co. of Philadelphia (1882), 58 Md. 172, supports the right of the third party to bring action upon the promise made for his benefit.

In Massachusetts, the earlier cases

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would seem to lead to the conclusion that the rule of law in that State was that such actions couli be maintained, for in Hall v. Marston (1822), 17 Mass. 575, Chief Justice PARKER said: "It seems to have been well settled heretofore that if A promises B for a valuable consideration, to pay C, the latter may maintain assumpsit for the money. The principle of this doctrine is reasonable and consistent with the character of the action of assumpsit for money had and received. There are many cases in which that action is supported without any privity between the parties other than what is created by law. Whenever one man has in his hands the money of another, which he ought to pay over, he is liable to this action, although he has never seen or heard of the party who has the right. When the fact is proved that he has the money, if he cannot show that he has legal or equitable ground for retaining it, the law creates the privity and the promise." And Justice BIGELow, in Brewer v. Dyer (1852), 7 Cush. (Mass.) 337, added that, “it does not rest upon the ground of any actual or supposed relationship between the parties, as some of the earlier cases would seem to indicate, nor upon the reason that the defendant by entering into such an agreement, has impliedly made himself the agent of the plaintiff, but upon the broader and more satisfactory basis, that the law operating on the act of the parties, creates the duty, establishes a privity and implies the promise and obligation, on which the action is founded." The opinion of Chief Justice SHAW, in Carnegie v. Morrison (1841),2 Met. (Mass.) 381, also supports this view.

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The opinions delivered in the the more recent cases in that State would, however, seem to be against the right of a third party to sue upon a contract made for his benefit, for in the case of Exchange Bank of St. Louis y. Rice (1871), 197 Mass. 37, Justice GRAY defines the law thus: "The general rule of law is, that a person who is not a party to a simple contract, and from whom no consideration moves, cannot sue on the contract, and consequently that a promise made by one person to another, for the benefit of a third who is a stranger to the consideration, will not support an action by the latter. And the recent decisions in this commonwealth and in England have tended to uphold the rule and to narrow the exceptions to it." He further adds that: "The unguarded expressions of Chief Justice SHAW in Carnegie v. Morrison and of Mr. Justice BIGELOW in Brewer v. Dyer, supra, to the contrary, * * were afterwards qualified, the limits of the doctrine defined and a disinclination repeatedly expressed to admit new exceptions to the general rule, in * Mellen v. Whipple (1854), 1 Gray (Mass.) 317; Millard v. Baldwin (1855), 3 Id., 484; Field v. Crawford (1856), 6 Id. 116; and Dow v. Clark (1856), 7 Id. 198. Those judgments have since been treated as settling the law of Massachusetts upon this subject." He further referred to Colburn v. Phillips (1859), 13 Gray (Mass.) 64 ; and Flint v. Pierce (1868), 99 Mass. 68. Although Justice GRAY laid down the law as above, yet he did not overrule the exceptions stated by Justice METCALF in Mellen V. Whipple, supra, that, "Indebitatus assumpsit for money had and received can be maintained, in various in

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stances, where there is no actual privity of contract between the plaintiff and defendant, and where the consideration does not move from the plaintiff. In some actions of this kind, a recovery has been had where the promise was to a thir person for the benefit of the plaintiff; such action being an equitable one that can be supported by showing that the defendant has in his hands money, which, in equity and good conscience, belongs to the plaintiff, without showing a direct consideration moving from him, or a privity of contract between him and the defendant. * * * Cases where promises have been made to a father or uncle for the benefit of a child or nephew form a second class in which the person for whose benefit the promise was made has maintained an action for the breach of it. The nearness of the relation between the promisee and he for whose benefit the promise was made has been sometimes assigned as a reason for those decisions." 3. [Cases falling within the decision in Brewer v. Dyer (1851), 5 Cush. (Mass.) 337,] "where the defendant had the use and occupation of land of the plaintiff, * under a promise, or under a legal liability to pay rent for it."

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The case of Felton v. Dickinson (1813), 10 Mass. 287, where a promise was made to the father for the benefit of his son when he should attain his majority, supports the second exception. The Court took the view that "although the father contracted for the son, yet he had a view to the son's advantage, and not his own," and therefore held the son entitled to recover in his

own name.

The principles set forth in Ex

change Bank of St. Louis v. Rice, supra, are followed in Carr v. National Security Bank (1871), 107 Mass. 43, wherein the defendants were a banking corporation, and the firm of Lincoln and Company had been accustomed to deposit money therein, and draw their checks upon the same. Lincoln and Company, in consideration of $600 paid to them by plaintiff, drew their check upon the defendants for the like sum, payable to the plaintiff's order, and the plaintiff duly presented the check and demanded payment which was refused, although the defendants had funds in hand, against which the firm were entitled to draw to a greater amount. Justice GRAY here points out, that here there was no trust or position of principal and agent established. "The relation between the defendants and the drawer, as disclosed in the declaration, was simply the ordinary one of banker and customer, which is a relation of debtor and creditor, not of agent and principal, or trustee and cestui que trust. The money deposited becomes the absolute property of the bankers, impressed with no trust, and which they may dispose of at their pleasure, subject only to their personal obligation to the depositor to pay an equivalent sum upon his demand, or order. The right of the bankers to use the money for their own benefit is the very consideration for their promise to the depositor. They make no agreement with the holders of his checks. * * * and the banker's promise to the drawer to honor his checks does not render them, while still liable to account with him for the amount of any check as part of his general balance, liable to an action of contract by the holder also,

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unless they have made a direct promise to the latter, by accepting the check when presented, or otherwise." The question of the right of the payee of a check does not, however, fall within the purposes of this annotation which is confined as far as possible to the question involved in the principal case, namely, the right of a third person to sue upon a contract made for his benefit, and must therefore be reserved for future consideration. The still more recent case of Morrill v. Lane (1883), 136 Mass., 93, is to the same effect. There the Court held "that a promise made by A to B that A will pay unspecified amounts of money to various persons not named, but described generally as of a certain class, will not support an action by one of those persons against A," no trust arising from such a promise. See further, as upholding the Massachusetts doctrine, Rogers v. Union Stone Co. (1881), 130 Mass. 581; Prentice v. Brimhall (1877), 123 Id. 291; and Gamwell v. Pomery (1876), 121 Id. 207.

The Michigan cases would seem to follow the English rule as it exists at the present time. Thus in Pipp et al. v. Reynolds et al. (1870), 20 Mich. 88, it appeared that upon a consideration moving from one Ecklin, the defendants promised to perform a job of painting for the plaintiff, which Ecklin had previously agreed with the plaintiffs to do for them. It was not stated to whom this promise of the defendant was made, but, generally that by means of the premises, promises and undertakings set forth in the declaration, the defendants became liable to pay to the plaintiffs the money thereby sought to be recovered. The Court held that—