Page:The Green Bag (1889–1914), Volume 05.pdf/568

 Rh Court, June, 1893, it was held that "a stranger to a contract between others, in which one of the parties promises to do something for the benefit of such stranger, there being nothing but the promise, no consideration from such stranger, and no duty or obligation to him on the part of the promisee, cannot recover upon it." The court said : — "The decision in 10 Paige was followed in Trotter7'. Hughes (12 N. Y. 74), and approved in Garnsey v. Rogers (47 N. Y. 233). In Vrooman i'. Turner (69 N. Y. 280), similar in its facts to the case in 10 Paige, the court go over the whole ground, recognize the decision in Lawrence v. Fox, and hold the two decisions consistent, and follow that in 10 Paige. It lays down this rule ' To give a third party who may derive a benefit from the perform ance of the promise an action, there must be, first, an intent by the promisee to secure some benefit to the third party; and, second, some privity between the two, — the promisee and the party to be benefited, — and some obliga tion or duty from the former to the latter, which would give him a legal or equitable claim to the benefit of the prom ise, or an equivalent from him personally.' ' 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; ' and ' there must be some legal right, founded upon some obligation of the promisee, in the third party, to adopt and claim the promise as made for his benefit.' In some cases, near relationship, as of father and daughter, or uncle and nephew, has been held to supply the place of a strictly legal right in the third party (Dutton v. Pool, i Vent. 318; Felton v. Dickinson, 10 Mass. 287), are instances of such. To enforce such a promise in favor of a third party, where there is no obligation to benefit him on the part of the promisor or promisee, nor any thing such as near relationship, nor any consideration from the third party, would be much like a gratuity. . . . The question was considered and the cases in Massa chusetts summed up in an able and exhaustive opinion by Metcalf, ]., in Meilen v. Whipple (i Gray, 317). That was the case of an agreement by a grantee of real estate to pay a mortgage for which the grantor was not person ally liable. It was held the creditor could not recover from the grantee. The court attempts to classify the cases in that State in which one not a party to the promise has been permitted to sue upon it. The classification may be briefly stated as : First, cases where the defendant has in his hands money which in equity and good con science belongs to the plaintiff — as, if A. put money or property in the hands of B. as a fund from which A. 's creditors are to be paid, and B. has promised expressly or implicdly to pay such creditors; second, cases where a near relationship, as father and child, or uncle and nephew, exists between the promisee and the person to be bene fited; third, cases, of which Brewer v Dyer (7 Cush. 337) is an instance, in which the defendant agreed with a lessee of premises to take the lease and pay the rent to the lessor, and entered with the knowledge of the lessor, paid him the rent for a year, and then left before the term expired. We have referred so fully to the decisions in New York and Massachusetts, because in those States 6?

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the question has more frequently arisen, and been more ably and thoroughly discussed, than elsewhere in this country. There has been no decision of this court at variance with the rule as held in those two States. . . . Without undertaking to lay down a general rule defining when a stranger to a promise between others may sue to enforce it, we are prepared to say that, where there is nothing but the promise, no consideration from such stranger, and no duty or obligation to him on the part of the promisee, he cannot sue upon it. Such is this case." CRIMINAL INADVERTENCE. — A very awkward case of what Richard Grant White used to call '•heterophemy " occurred in Hawkins v. State, Flo rida Supreme Court, July 15, 1893. In the margin of the written instructions, which the jury were per mitted to take to their room, the judge, in one instance of a charge asked by the prisoner, wrote "guilty" instead of "given." The conviction of murder was reversed for this reason, the appellate court evidently deeming that the trial judge had thus incautiously spoken his mind. They remarked: — "But however absent-mindedly or unintentionally it was written upon the charge, the question for our considera tion is, was it, in the hands of the jury in their room, calculated to injuriously affect the defendants? We think that it was. There are but two words — 'guilty,' ' inno cent ' — that we know of in the English vocabulary that, when put singly and alone before the eyes of the jury, can so completely and effectually sum up and convey to their minds the conclusions of the judge upon the entire testimony in the case. Had he written the one word 'innocent 'on the charge, the thought conveyed thereby would have been, ' These people are innocent The proofs are insufficient to establish their guilt; ' on the other hand, the writing of the word ' guilty ' was tanta mount to saying, 'The proofs are ample to establish their guilt. In my judgment, they are guilty,' — either of which declarations would have been an unwarranted invasion by the court of the exclusive province of the jury to pass upon the facts. Though the jury may have been im pressed with the idea that the writing of the word was unintentional on the judge's part, and due to absentmindedness, even then it was calculated to convey to their minds the idea that the judge inadvertently gave expression to that which was uppermost in his mind. All of which was seriously harmful to the defendants. The writing of this word by the court upon the margin of the charge, and then sent with the jury to their room, to say the least, was so wide a deviation from the ordinary pro ceedings and forms provided by law for the securement to the defendants of a fair and impartial trial, that they were entitled to require at the hands of the State satisfac tory evidence that they had not been injured by reason of such departure from the usual forms, and the burden was not upon them to show affirmatively that such departure had been the probable cause of their conviction." As the sentence was not capital, this seems an extra-humane construction. Lynch courts are not subject to such mistakes at least.