Page:Harvard Law Review Volume 8.djvu/116

100 100 HARVARD LAW REVIEW. cure. And in Levet v, Hawes, which is found in Cro. Eliz. 619, it is held that a father cannot maintain an action on a promise made to him to pay a sum of money to his son on his marriage with the defendant's cousin. In Rippon v. Norton, Cro. EHz. 849, it was also decided that the person to whom the promise was made for the benefit of his son could not maintain the action. The doc- trine, however, that nearness of relation is sufficient to give the benefit of the consideration, though often referred to in the text- books, is not sustained by the early cases, and has no foundation in principle, and has been wholly repudiated in modern cases, both in England and in this country. There are a good many early cases in which it is held that an action may be maintained by one for whose benefit money or goods have been given to another, though the promise to pay was not made to the plaintiff himself. In these the action was based upon the idea that there was a debt arising out of the receipt of the money or property, and that it was payable to the plaintiff. The defendant has received property charged with the debt, or has obtained money which he has agreed to pay to the plaintiff. No distinction was drawn between legal and equitable obligations, and the courts did not stop to consider whether, so long as the order was subject to be countermanded, the defendant was not legally liable to the other party. The later English cases and many American decisions have limited the right of recovery even in equity to cases in which the plaintiff has changed his position upon the strength of the stipulation,^ and at law to cases where there is an acceptance of the order so that it cannot be rev6ked.2 The earlier cases, however, are fair examples of one of the classes referred to by Judge Metcalf as forming exceptions to the general rule with reference to parties to actions, and it will be found that these will furnish precedents for the later American cases without resorting to such a reversal of the general rule as to declare that a person for whose benefit a contract is made may maintain an action upon it. Whorwood v. Shaw,^ was an action of debt in which it was declared that Field had acknowledged to have received of one Prettie forty pounds to be equally divided between A and B and to their use. The action was brought by A, and one question was 1 I Spence Eq. Jur. 280-286. a Williams v. Everett, 14 East, 582 (1811). 3 Yelverton, 23.