104 HARVARD LAW REVIEW. an action upon it, though the consideration does not move from him." 1 It would take too long to refer to the cases in detail, but it may be safely said that the rule is seldom in fact applied, except in cases where the promisor and the promisee have both intended to confer the benefit on the person who brings the action, or where the person who sues is the only person who is interested in the performance of the contract, or cases of money paid to one for the use of another, or cases where one having money for another agrees to pay it to a third.^ The Supreme Court of the United States, in a later case than that referred to in the beginning of this article, distinctly declares the general rule to be that privity of contract is necessary to the maintenance of an action of assumpsit, but says there are confessedly many exceptions to it.^ " One of these, and by far the most frequent one," says Mr. Justice Strong, " is the case where, under a contract between two persons, assets have come into the promisor's hands, or under his control, which in equity belong to a third person. In such a case it is held that the third person may maintain an action in his own name ; but then the suit is founded rather on the implied undertaking the law raises from the possession of the assets, than on the express promise. Another exception is where the plaintiff is the beneficiary solely interested in the promise, as where one person contracts with another to pay money or to deliver some valuable thing to a third. But where a debt already exists from one person to another, a promise by a third to pay such debt, being primarily for the benefit of the original debtor, and to relieve him from liability to pay it (there being no novation), he has a right of action against the promisor for his own indemnity; and if the original creditor can also sue, the promisor would be liable to two separate actions, and therefore the rule is that the original creditor cannot sue ; " and it was held that the holders of coupon bonds could not maintain an action against one who had agreed with the maker of the bonds to assume the payment of them. The contrary conclusion was reached by the Court of Appeals in 1 Joslin V. N. J. Car Spring Co., 36 N. J. Law, 141 ; Farley v. Cleveland, 4 Cow. 432, 9 Cow. 639; Lawrence v. Fox, 20 N. Y. 268; 93 U. S. 143. 2 See American Note to Lampleigh v. Brathwait, i Smith Ldg. Cas. 28S, 8th ed., and the articles above referred to in 29 Am. Law Rev. (New Series), 596; 15 Am. Law Rev. 231. 8 Nat. Bank v. Grand Lodge, 98 U. S. 123 (1878).
