Sec 797a

Another exception is to be found in the case where a contract is made with the intention of injuriously affecting a third party. "When this is done, such third party, if injured, may obtain redress from the wrong-doer.10 This, however, is not by a contractual suit, but by a suit for tort.

Exception as to party on whom wrong is inflicted.

1 Pollock, 3d ed. 238, citing Crouch V. Credit Foncier, L. R. 8 Q. B. pp. 384-5; Goodwin V. Robarts, L. R. 1 Ap. Ca. 476; see infra, sec 846.

2 Wh. Con. of Laws, sec 454; Rothschild V. Currie, 1 Q. B. 45; Home V. Rouquette, L. R. 3 Q. B. D. 514; Cox V. Nat. Bank, 100 U. S. 704.

3 Franks V. Brown, 17 S. & R. 290;.

Hodgdon V. Naglee, 5 W. & S. 217; Lightly V. Brenner, 14 S. & R. 127.

4 Bunting V. R. R., 81 Penn. St. 254. See infra, sec 841.

5 Licey V. Licey, 7 Barr, 251.

6 Carr V. Le Fevre, 27 Penn. St. 413.

7 Hegeraan V. McCall, 1 Phila. 531.

8 London Saving Fund V. Bank, 36 Penn. St. 498.

9 Infra, sec 841. 10 See supra, sec 237.

Sec 798

It has already been noticed that many of the cases in which persons who were at one time strangers to a contract are held entitled to sue on such contract are to be explained on the ground of a novation by which such persons become parties to the contract. To constitute such novation it is essential (1) that the creditor should assent, on a sufficient consideration, to accept the new debtor, and (2) that the new debtor should assent, on a sufficient consideration, to be bound.1

Sec 799

A cestui que trust, no matter how exclusively the beneficial enjoyment of a contract is vested in him, cannot sue on it unless he is a party to the contract either in name or through an agent. If he could, it could be only on assumption of a contractual relation, which, were it recognized on principle, would enable any two persons to put a third on business relations with them whether he would or not.2 But while a cestui que trust cannot, without becoming a party to a contract, sue on it, he may compel his trustee to sue; or may, in a court having equitable jurisdiction, use the trustee's name for the purpose of bringing suit.3 "This rule could not be disregarded with-out destroying the fundamental distinction between courts of law and courts of equity with regard to the remedy peculiar to each jurisdiction; if the cestui que trust were permitted to sue at law in his own name, the benefits intended to result from the intervention of a trustee clothed with a legal title might be lost, and the advantages arising from giving courts of equity exclusive control over matters of trust would be defeated."4 - When the suit is brought in the trustee's name, a third party cannot set up against it the title of the cestui que trust.5

Novation requires creditor's assent.

Cestui que trust cannot sue unless party.

1 See infra, sec 852 et seq.; and see Conquest's case, L. R. 1 Ch. D. 334.

2 Supra, sec 787; Ch. on Pl. 16th Am. ed. (1879) 2; How V. How, 1 N. H. 49; Montague V. Smith, 13 Mass. 404; Treat V. Stanton, 14 Conn. 445.

3 Piercy ex parte, L. R. 9 Ch. 43; Pigott V. Thompson, 3 B. & P. 147; Berry V. Gillis, 17 N. H. 9. That in equity a trustee must join party having beneficial interest, see Dunn V. Seymour, 11 N. J. Eq. 220; and that the party beneficially interested may sue in his own name, see Burlew V. Hillman, 16 N. J. Eq. 23.

4 Ch. on Pl. 16th Am. ed. (1879) 3; see Barndollar V. Tate, 1 S. & R. 160.

5 Huston V. Wickerham, 8 Watts,.