In some cases, in which the consideration did not pass directly from a plaintiff, and the promise was not made directly to him, it has been made a question how far he might avail himself of it, and bring an action in his own name, instead of the name of the party from whom the consideration moved, and to whom the promise was made. It seems to have been anciently held (r) as a rule of law (though not universally so), (s) that no stranger to the consideration of an agreement could have an action on such agreement, although it were made expressly for his benefit; and this rule has been recognized and enforced in modern times. (t) But it is certain that if the * actual promisee is merely the agent of the party to be benefited, that party may sue upon the promise, whether his relation to and interest in the agreement were known or not. (u) This, however, rests upon the ground that the consideration actually moves from such party, and that he cannot be regarded as a stranger to it. But it seems to be held in recent cases, that, while the rule itself is not denied, it would generally be held inapplicable where the beneficiary has any concern whatever in the transaction. (v) In some

(r) Crow v. Rogers, 1 Stra. 592; Bourne v. Mason, 1 Vent. 6; s. c. 2 Keb. 457, Bull. N. P. 134. And in the late case of Jones v Robinson, 1 Exch. 456, Parke, B., says: " It is true that no stranger to the consideration can sue."

(s) Dutton v. Poole, 1 Vent. 318, 332; s. c. T. Jones, 103, 2 Lev. 210.

(t) Price v. Easton, 4 B. & Ad. 433; 8. c. 1 Nev. & M. 303. In this case the declaration stated that W. P. owed the plaintiff £13, and that in consideration thereof, and that W. P., at the defendant's request, had promised the defendant to work for him at certain wages, and also, in consideration of W. P. leaving the amount which might be earned by him in the defendant's hands, he, the defendant, undertook and promised to pay the plaintiff the said sum of .£13. Averment, that W. P. performed his part of the agreement. Judgment arrested, because the plaintiff was a stranger to the consideration. And Littledale, J., said: "This case is precisely like Crow v. Rogers, and must be governed by it."

(u) As in the familiar instance of principals suing for goods Bold by their factors, who may be supposed perhaps to have been the principals, and to whom alone the promise was made. Hornby v. Lacy, 6 M. & Sel. 166; Coppin v. Craig, 7 Taunt. 243; Morris v. Cleasby, 1 M. & Sel. 576.

(v) Thus, in the case of Lilly v, Hays, 1 Nev. & P. 26; s. c. 5 A. & E. 550, it was held, that if A remits money to B to pay C, and B promises C to payt it to him, C can maintain an action against B for money had and received. And Patteson, J., there said: "The only question in this case is, whether there is a consideration moving from the plaintiff. It is said, that such is the rule of law hitherto adhered to; and to that I agree. But in an action for money had and received, there seldom is a direct consideration moving from the plaintiff. Here, the defendant, though not the general agent, became the agent of Wood in this transaction; therefore, the consideration did move from the plaintiff, through the instrumentality of Wood." cases, the actual promisee would be considered only the agent of the beneficiary, and in others the beneficiary would be regarded as the trustee of the party to whom the promise was directly made, and, as such trustee, might maintain an action in his own name. (w) In this country, the right of a third party to bring an action on a promise made to another for his benefit, seems to be somewhat * more positively asserted; (x) and we think it would be safe to consider this a prevailing rule with us; indeed it has been held that such promise is to be deemed made to the third party if adopted by him, though he was not cognizant of it when made. (y)

But where the promise is made under seal, and the action must be debt or covenant, then it must be brought in the name of the party to the instrument; and a third party for whose benefit the promise is made cannot sue upon it. (z)

- See also Jones v. Robinson, 1 Exch. 454; Thomas v. Thomas, 2 Q. B. 85; Hinkley v. Fowler, 15 Me. 285; Carnegie v. Morrison, 2 Met. 401; Dolph v. White, 2 Kern. 296.

(w) In Pigott v. Thompson, 3 B. & P. 149, Lord Alvanley is reported to have said: " It is not necessary to discuss whether, if A let land to B, in consideration of which the latter promises to pay the rent to C, his executors and administrators, C may maintain an action on that promise. I have little doubt, however, that the action might be maintained, and that the consideration would be sufficient; though my brothers seem to think differently on this point. It appears to me that C would be only a trustee for A, who might for some reason be desirous that the money should be paid into the hands of C. In case of marriage, it is often necessary to make contracts in this manner, and the personal action is given to the trustees for the benefit of the feme covert."

(x) See 22 Am. Jur. 16-20; Hind v. Holdship, 2 Watts, 104; Arnold v. Lyman, 17 Mass. 400; Bridge v. Niagara Ins. Co. 1 Hall, 247; Jackson v. Mayo, 11 Mass. 152, n. (a); Hinkley v. Fowler, 15 Me. 285; Hall v. Marston, 17 Mass. 575; Fel-ton v. Dickinson, 10 id. 287; Helms v. Kearns, 40 Ind. 124; Delaware & H. Canal Co. v. Westchester Co. Bank, 4 Denio, 97; National Bank v. Grand Lodge,

98 IT. S. 123; Keller v. Ashford, 133 U. S. 6; Lawrence v. Fox, 20 N. Y. 268; Gifford v. Corrigan, 117 N. Y. 257; Beers v. Robinson, 9 Penn. St. 229. But see contra Exchange Bank v. Rice, 107 Mass. 37. This question was fully examined in the case of Carnegie v. Morrison, 2 Met. 381, by Shaw, C. J., the old case of Dutton v, Poole, 1 Vent. 318, being adopted as good law, and in Brewer v. Dyer, 7 Cush. 337, the same doctrine is reaffirmed. - In like manner, the American courts have held, that a promise to three, upon a consideration moving from them and a fourth person, will support an action by the three. Cabot v. Haskins, 3 Pick. 83. See also Farrow v. Turner, 2 A. K. Marsh. 496; Crocker v. Higgins, 7 Conn. 347; Miller v. Drake, 1 Caines, 45. See also Bigelow v. Davis, 16 Barb. 561.

(y) Lawrence v. Fox, 20 N. Y. 268; Steman v. Harrison, 42 Penn. St. 49.

(z) Lord Southampton v. Brown, 6 B. & C. 718; Offly v. Ward, 1 Lev. 235; Sanders v. Filley, 12 Pick 554; Johnson v. Foster, 12 Met. 167; Hinkley v. Fowler, 15 Me. 285; Flynn v. No. American Ins. Co. 115 Mass. 449; Crowell v. Currier, 12 C. E. Green, 152; Fairchild v. Northeastern Ins. Co. 51 Vt. 613. But see, contra, Garvin v. Mobley, 1 Bush, 48; Rogers v. Gosnell, 51 Mo. 466; Coster v. Mayo, 43 N. Y. 399; Bassett v. Hughes, 43 Wis. 319.