128 Mass. 29; Stoddard V. Ham, 129 Mass. 383; Treat V. Stanton, 14 Conn. 445; Colt V. Ives, 31 Conn. 25; Burnett V. Jersey City, 31 N. J. Eq. 341; Owings V. Owings, 1 Har. & G. 484; Ross V. Milne, 12 Leigh, 204; Litchfield V. Garrett, 10 Mich. 426; Weathers V. Ray, 4 Dana, 474; but see infra, sec 785; Allen V. Thomas, 3 Metc. Ky. 198; McLaren V. Hutchinson, 18 Cal. 80. Cf. Johnston V. U. S., 13 Ct. of Cl. 217.

See, also, National Bank V. Grand Lodge, 98 U. S. 123, where a corporation adopted a resolution assuming the payment of certain bonds of an association, provided that the association should issue stock to the corporation to the amount of the bonds, as the bonds were paid. It was held that holders of the bonds could not compel, by a suit in their own name, the corporation to pay the bonds.

Judge Perkins, in a note to the 16th Am. ed. of Ch. on Pl. (1879), after citing some of the above cases, says: " It seems to be the general rule in the American states, that the plaintiff in an action on a simple contract must be the person from whom the consideration of the contract actually moved, and that a stranger to the consideration cannot sue on the contract." But though this is the right rule in principle, we cannot, in view of the many conflicting cases above given, regard it as generally accepted in the United States.

It should be added that Sailly V. Cleveland, 10 Wend. 156; Hubbert V. Borden, 6 Whart. 79; and Blymire V. Boistle, 6 Watts, 182, cited by Judge Perkins, are of questionable application to the rule given by him.

In Bohanan V. Pope, 42 Me. 93, A. contracted to haul logs for E., who was to pay the men engaged by A. D. was engaged by A. for this purpose, and it was held that when he elected to sue A., this exhausted his remedy, and that he could not afterwards sue E.

cover damages for the breach of it."1 Hence, "in a suit to enforce a contract for the sale of an estate that is under mortgage, made by the mortgagor, the mortgagee cannot be properly joined as a party; although his concurrence may be necessary to the conveyance."2 "Nor in a suit on a contract of sale by the mortgagee under a power of sale, can the mortgagor be joined as a party."3

1 Per Cottenham, L. C, in Tasker V. Small, 3 M. & Cr. 69; Wood V. White, 4 M. & C. R. 460; Paterson V. Long, 5 BeaV. 186.

2 Leake, 2d ed. 442; citing Tasker V. Small, 3 M. & Cr. 69.

3 Ibid.; Corder V. Morgan, 18 Ves. 344; Harry V. Davey, L. R. 2 Ch. D. 721.

According to Mr. Pollock (3d ed. 219), "the doctrines of equity are not so free from doubt. There is clear and distinct authority for these propositions: when two persons, for valuable consideration as between themselves, contract to do some act for the benefit of another person not a party to the contract - (1) That person cannot enforce the contract against either of the contracting parties, at all events, if not nearly and legitimately related to one of them. Colyear V. Mulgrave, 2 Kee. 81. Probably the only exception is that mentioned above, in favor of children provided for by marriage settlement. (2) But either contracting party may enforce it against the other, although the person to be benefited had nothing to do with the consideration. Davenport V. Bishopp, 2 Y. & C. 451; 1 Ph. 698, 704. On the other hand, the case of Gregory V. Williams, 3 Mer. 582, shows that a third person for whose benefit a contract is made may join as co-plaintiff with one of the actual contracting parties against the other, and insist on the arrangement being carried out." But this case can be reconciled with the other authorities on the ground that what the plaintiff sued on was virtually a declaration of trust, in which the other parties had joined. See Empress Engineering Co. in re, L. R. 16 Ch. D. 125-129.

There can be no question that by the Roman classical standards, no person can sue on a contract to which he is not a party. Whether this continues in force as part of the Roman common law, and how far it is modified by recent codes, are questions which have given rise to conflicts of opinion at least as great as those between the courts of this country as to the rights of third parties to sue.

Vangerow, III. (7th ed.) sec 608, after a careful examination of the Roman standards, holds that a third party can only sue in cases where the transaction may be considered under the special facts as negotiorum gestio.

Windscheid (Pandekt. II. sec 316) distinguishes with great emphasis between contracts for the benefit of third parties and agencies. The promisee in contracts for the benefit of third parties, is the party, he holds, who is to sue, though he admits exceptions: (1) where an assignment is actually made for, and accepted by the third party; and (2), where there is privity between the debtor and the third party.

A treatise on the same topic by Bahr will be found in 6 Ihering Jahr. 1863, No. 3. By Bahr the right is rested in agency. The primus in accepting the promise did so as agent of the tertius.

The Prussian Landrecht, I. 5, proin their own person, and in their own names. Whoever undertakes to bind himself must bear the consequence in his own person; if he has acquired a right, the right belongs to him; if he has undertaken a duty, the duty is imposed on him. It is argued by Un-ger, however, that the Roman rule, based as it was on organized selfishness, does not obtain any longer under the conditions of modern society in which the duty to neighbors is regarded to be as morally imperative as is the duty to self. He is beyond question right in the position that when the conditions of society change, the common law, which is the expression in a judicial shape of the moral sense of the community, changes also. He is right, also, in holding that when a trust is admitted, such trust should be enforced. But in holding that all provision for the benefit of third parties should be held morally binding, and therefore legally binding, he goes too far. Many such provisions are made for the purpose of subjecting the third party to obligations to which no one should be subjected except on his own independent and free consent.