NOTES, l8l action upon a promise, solely because he is beneficially interested in its performance, seems now in a fair way to lose the influence which it has had in some of our State courts. Long ago the English courts repudi- ated it, the United States and the Massachusetts courts have practically denied it, and now a New York court has refused to apply it any further than it can help. (See 8 Harvard Law Review, 93 ; 9 id. 233.) In the common case of a promise by a bank to a depositor to pay his checks, even courts which fully accept Lawrence v. Fox will not support an action by the check-holders against the bank, though they are cer- tainly legal creditors of the promisee. (See 9 Harvard Law Review, 539.) There is, to be sure, a considerable class of cases where the pur- chaser of mortgaged land has assumed to pay off the mortgage debt ; and the courts have allowed the mortgagee to enforce the payment of the debt by such a purchaser. Of this sort is the recent case of Solicitors' Loan and Trust Co. v. Robins^ 54 Pac. Rep. 39 (Wash.), in which, however, there is a vigorous dissenting opinion. But whenever relief is given in these cases, it ought to be upon purely equitable grounds ; as is declared in the opinion in Keller v. Askford, 133 U. S. 610, cited as the leading authority in Trust Co. v. Robins {supra), which expressly denies that the right of the mortgagee under certain circumstances to take advantage of an obli- gation entered into by a purchaser of the mortgaged property results from any legal right of the mortgagee to sue on a contract the discharge of which would be for his benefit. See also on this point Greeti v. Sto?iey 34 Atl. Rep. 1099, a recent New Jersey case. Libel Invited by the Plaintiff. — That one who procures the pub- lication by another of a libel to his agents, for the purpose of making it the foundation of an action, cannot recover, is a well established rule of law. It has been recently reaffirmed by the Supreme Court of New York. Miller Y. Donovan, 39 N. Y. Supp. 820. In that case, which is a good type of the class in question, the plaintiff having learned that the defendant had in his possession a libellous letter concerning him, sent to the defendant agents, who, by means of false representations, induced the defendant to read the letter to them. A conclusion not only in accord with the authorities, but also of evident soundness and rectitude, should rest on definite and substantial grounds. Yet Giegerich, J., who delivered the opinion of the court, while intimating that the occasion was privileged, supported the decision chiefly on the broad but uncertain basis of apparent justice. The opinions, too, in the few earlier cases on the subject, in all of which the same result has been reached, have not strength either in agreement with one another or in sufficient reason severally. Such a state of the authorities is not satisfactory. The view taken by the judges in the earliest cases was that pubHcation to the plaintiffs agents was, in truth, merely communication to the plain- tiff himself, and that consequently there was no publication. King v. Waring, 5 Esp. 15 ; Smith v. Wood, 3 Camp. 323. The difficulty with this is that it puts a purely fictitious meaning on the word "publication." One is an agent without losing his identity, and a communication is made not only to the agent, but also to the thinking and reasoning being. Besides, if the " no publication " theory is adopted, how are cases where there has been a previous unprivileged publication to be dealt with? It has several times been held that where the defendant had spoken slanders,
