and claim by action the benefit of a contract between other parties. There must be either a new consideration or some prior right or claim against one of the contracting parties, by which he has a legal interest in the performance of the agreement."

The more recent case of Todd v. Weber (1884), 95 N. Y. 181, takes the doctrine as well settled that the right of a third party to maintain assumpsit on a promise, not under seal, made to another for his benefit, as now the prevailing rule in this country.

A case has very recently been brought before the Court of Appeals of New York in which the sufficiency of consideration was again raised. From the facts it would appear that the defendant was the executor of one Wright, and that the testator's brother, who was his heir at law and next of kin, contested the probate. A compromise was made between the executor (the defendant in the present action) and the brother of the testator, that the objection should be withdrawn in consideration of the defendant's paying the plaintiff in the present action, a certain sum. The agreement was reduced into writing and read as follows: "For value received, I hereby promise to pay to Saint Mark's Church, New Castle, Westchester County, the sum of five hundred dollars. It is understood that said Church will appropriate the interest of said money to the improvezient, adornment, and care-taking of the churchyard of said church: but the payment thereof shall not be exacted till the decease of Thomas Wright [the brother]. It is further understood that upon the execution and

delivery, by the residuary legatees named in the will of Lewis Wright [the testator], of a written agreement or of a sufficient promise to bind them, instead of the under signed, to the above, then this writing shall be destroyed, or delivered to the undersigned, Chas. G. Teed." After giving the definition of consideration as in Currie v. Misa (1875), L. R., 10 Ex. 162, as follows: "A valuable consideration in the sense of the law, may consist either in some right, interest, profit or benefit accruing to the one party, or some forebearance, detriment, loss or responsibility, given, suffered, or undertaken by the other," the Court proceeds: "It is not essential that the person to whom the consideration moves should be benefited, provided the person from whom it moves is, in a legal sense, injured. The injury may consist of a compromise of a disputed claim, or forbearance to exercise a legal right; the alteration in position being regarded as a detriment that forms a consideration, independent of the actual value of the right forborne. * * As recently held by this Court, [Todd v. Weber, supra,] after a careful review of the authorities, a party for whose benefit a promise is made, may sue in assumpsit thereon even if the consideration thereof arose between the promisor and a third person." Rector etc. of St. Mark's Church v. Teed, Ct. of Appl., N. Y., June 24, 1890.

In North Carolina, the courts uphold the doctrine, it would seem, only, upon the ground of money had and received to the plaintiff's use: Draughan v. Bunting (1848), 9 Ired. (N. C.) 10; Hall v. Robinson (1847), 8 Id. 56; and the more recent case of Peacock v. Williams, supra, pages 606-7, while noticing

the want of privity, confirms the above.

The Ohio courts recognize this right of action in the original creditor. In Trimble v. Strother (1874), 25 Ohio St. 378, Justice WHITE, said "We do not question the former rulings of this Court, that a party may maintain an action on a promise made for his benefit, although the consideration moved from another, to whom the promise was made. But this rule must be understood and applied with its proper qualifications." He cited Bagaley v. Waters (1857), 7 Ohio St. 359; Miller & Co. v. Florer (1864), 15 Ohio St. 151; Brewer v. Dyer and Millen v. Whipple, supra, and Thompson v. Thompson (1854), 4 Ohio St. 333, wherein Chief Justice THURMAN says:-"It is well settled that if one person makes a promise to another for the benefit of a third person, that third person may maintain an action at law on that promise."

The Oregon Code of Civil Procedure provides: "27. Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in Section 29, but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract." And 8 29: 'An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A person with whom or in whose name a contract is made for the benefit of another, is a trustee of an express trust within the meaning of this section." Hence, a person for whose benefit a promise is made being the party beneficially interest

ed, the real party in interest, may bring suit thereon in his own name: Holladay v. Davis (1873), 5 Or. 43; Baker & Smith v. Eglin (1883), II Id. 333; even though the contract be under seal: Hughes v. Oregon Railway and Nav. Co. (1884), II Id. 437; Schneider v. White (1885), 12 Id. 503.

In

The Pennsylvania cases show the rule in that State to be, that where A promises B to pay B's debt to C out of funds placed in his hands by B, the case does not fall within the statute of Frauds, and therefore "the promise is not simply to pay the debt of another, but to hand over funds appropriated by the debtor himself to the creditor for whose use he deposits them. such case, the creditor, though not present, is the party to be benefited, and becomes the owner of the fund thus impressed with a trust for him and can sue for it:' Justice v. Tallman (1878), 86 Pa. 147. Chief Justice MERCUR, in Townsend v. Long (1875), 77 Pa. 143, thus states the law upon this point: "Where there is a transfer of a fund to the promisor, for the payment of the debt he is liable to the creditor on his verbal promise made to the owner of the fund; or if property charged with the payment of the debt be transferred to him, on his promise to the vendor to pay the debt, he is liable to an action by the creditor." In other cases it would seem, that in order to entitle the third party to sue upon the contract, he must have become a party to, or adopted, the new agreement: supra, pages 605-6.

The Rhode Island courts hold that the contract is not within the statute of Frauds, and generally uphold the third party's right to sue: supra, page 602.

The Code of Civil Procedure of South Carolina provides: "SECTION 132. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in SECTION 134; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract. But an action may be maintained by a grantee of land in the name of the grantor, or his or her heirs or legal representatives, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision." And the case of Brown v. O'Brien (1845), 1 Rich. (S. C.) 268, supports the third party's right to sue. Thompson v. Gordon (1848), 3 Strobh. (S. C.) 196.

The Tennessee courts support the right upon the equitable doctrine that allows an original vendor to proceed either against the estate, or against the purchase money in the hands of the sub-purchaser. It looks upon the action of assumpsit in such cases as being an equitable one, entitling the party to recover that which he equitably ought to have: supra, pages 603-4.

The Texas courts uphold the doctrine that if a party received money from A to pay to B, the latter may maintain a suit against him for it. And if one, for sufficient consideration, undertake to pay a debt due to another by a third party, such undertaking is not within the statute of Frauds: Monroe v. Buchanan (1863), 27 Tex. 247.

The real party in interest must sue: Thompson v. Cartwright (1846), 1 Tex. 87.

The compiled laws of Utah (ed. 1876, p. 492) provide: "SECTION 4. Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in this act."

The Vermont courts hold that if A receives property from B to convert into money, under a promise to pay the debt due from B to C, and converts such property into money, C may sue in his own name for his debt; but where the contract is special, or to the extent that it is special, it can only be sued in the name of the party with whom it is made, and from whom the consideration moves: that after the money is realized it becomes absolutely the money of the plaintiff in the defendant's hands, and the law implies a promise directly from A to C: Phelps, Dodge & Co. v. Conant & Co. (1858), 30 Vt. 277; Crampton v. Ballard (1838), 10 Id.

251.

The Code of Civil Procedure of Washington provides: "SECTION 4. Every action shall be prosecuted in the name of the real party in interest, except as is otherwise provided by law."

In West Virginia, Chap. 71 of the code provides: "2. An immediate estate or interest in, or the benefit of a condition respecting any estate, may be taken by a person under an instrument, although he be not a party thereto; and if a covenant or promise be made, for the sole benefit of a person with whom it is not made, or with whom it is made jointly with others, such person may maintain in his own name, any action thereon which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or

promise." Johnson v. McClung (1885), 26 W. Va. 659, shows the effect of this section to be not to divest rights, but to afford remedies to parties not allowed by technical rules of pleading at common law, and interprets the section as reading thus: "If a covenant or promise be made for the sole benefit of a person with whom it is not made, or (if a covenant or promise is made for the sole benefit of a person) with whom it is made jointly with others, such person may maintain in his own name any action thereon, which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise."

The Revised Statutes of Wisconsin (ed. 1889, p. 1482) provide: "SECTION 2605. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section two thousand six hundred and seven; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of the contract."

The Revised Statutes of Wyoming (ed. 1887, page 558) provide: "SECTION 2382. An action must be prosecuted in the name of the real party in interest, except as provided in the next two following sections; but when a party asks that he may recover by virtue of an assignment, the right of set-off, counter-claim and defense, as allowed by law, shall not be impaired." The sections referred apply to actions on bonds and by executors, officers, trustees and so forth.

In conclusion, the right of a third party to sue upon a contract made with another for his benefit, is upheld by the Supreme Court of the United States in cases where assets have come to the promisor's hands, or under his control, which in equity belong to such third party, and that upon the ground of an implied promise, and also in cases where the plaintiff is the beneficiary solely interested in the promise: supra, pages 600-1, and Hendrick v. Lindsay et al. (1876), 93 U. S. 143.

interstate commerce.

Ga., April 4, 1890.