OUTLINES OF TRIAL PROCEDURE. By J. L. Bennett, of the Chicago Bar. Chicago: Donohue & Henneberry. 1895. 12mo. PP. 55.

In his preface, Mr. Bennett quotes from Thompson on Trials to the effect that the subject of trial procedure is vast enough to embrace the whole field of legal learning. His object, he explains, is to deal with its leading principles in as brief a space as possible, and this task he accomplishes in less than fifty pages. As a result of such vigorous condensation, the work is necessarily somewhat dogmatic and rather elementary in character; but that suggestiveness which the author aimed at has certainly been to a considerable degree attained. Though intended primarily for use in Illinois, the book will probably be found of value elsewhere.

R. G. D.

OUTLINE OF THE INFRINGEMENT OF PATENTS.

By Thos. B. Hall. New

York and Albany: Banks Brothers. 1895. pp. vi, 86. In the main this book is founded upon two larger works on patents and their infringement, previously published by the same author, both of which have been praised by the members of the Supreme Court. It is based solely upon the opinions of the U. S. Supreme Court, giving an outline of the decisions of this body upon patent licenses, the identity of inventions, the validity of patents, and damages for infringement. Cases illustrating the development of the principles laid down in the body of the work are collected in chronological order at the end of the book which must prove very useful as a handy reference manual for the patent lawyer.

TABLE OF PUBLIC GENERAL ACTS IN FORCE.

J. P. H.

By Paul Strickland.

London: Wm. Clowes and Sons, Limited. 1895. pp. 82. The compiler has collected in chronological order all the English statutes passed by Parliament and now in force in any part of the British Empire. Partial repeal or alteration is indicated, as well as the subjectmatter and part of the empire to which each statute is applicable. It is noteworthy that one-half of all the acts mentioned have been passed since 1860, and five-sevenths during the reign of Victoria. In all, over 4,000 are tabulated.

J. P. H.

NEW YORK STATE LIBRARY BULLETIN: Subject Index of Law Additions. By Librarian Stephen B. Griswold. Albany: University of the State of New York. 1894. pp. 207 to 509.

Another eloquent testimonial to the increasingly rapid accumulation of legal literature is this supplement to the index of the New York State Law Library. It includes 12,000 volumes added to the library between 1883 and 1893, alphabetically arranged, with cross-references, in a form convenient for consultation.

VITAL STATISTICS OF THE NEW ENGLAND STATES.

J. P. H.

Compiled by State

Boards of Health. Boston: Damrell & Upham. 1895. pp. 59. This little pamphlet gives in tabulated form the statistics of the six New England States in regard to mar iages, divorces, births, and deaths

for the year 1892, and compares them with the same kind of data from other countries, and for preceding periods of time. Among other interesting facts the curious circumstance is revealed that while the marriage rate in New England is the highest in the world, the birth rate is almost the lowest record in any country.

J. P. H.

HARVARD

LAW REVIEW.

VOL. IX.

NOVEMBER 25, 1895.

NO. 4.

IN

CONSIDERATIONS MOVING FROM THIRD

PERSONS.

N most actions upon contracts, the consideration "moved" di rectly from the plaintiff to the defendant, either by way of a benefit conferred or a loss sustained, or both, and the promise sued upon was made by the defendant directly to the plaintiff.

But occasionally the whole consideration arises between the defendant and some third person other than the plaintiff, and the promise is made to such person alone; and the question arises, Can any other person than the promisee maintain an action upon such promise, solely because he is beneficially interested in its performance? Many cases seem to hold that he can. Is that a universal, or even a general rule? Is not the general rule the other way? If A. sends a present to B. by an express-man and pays him double price upon his promise to deliver the article. promptly, can B. recover damages for the carrier's non-performance of that contract?

A perfect, well rounded contract requires not only a promise and a consideration, but a participation by each party in both of these elements. Possibly a privity as to only one might not always be fatal, though even this is doubtful; but a want of privity as to both the promise and the consideration certainly seems to be an insuperable obstacle to an action, upon the strict principles of the common law. If no other reason existed, the fact that the person who furnished the consideration, and to whom the promise was marle, could always maintain an action upon it, seems to be suffi

cient reason why another person could not, even though interested in the performance. To allow two actions by two disconnected persons, having opposite interests, upon the same promise, would indeed be anomalous.1

That a plaintiff cannot maintain an action when the whole consideration moves from a third person to the defendant, and the defendant's promise is made wholly to such third person, has been the law of England for over two centuries.2

A marked illustration of this principle occurred in the recent case of Tweddle v. Atkinson,3 in which two fathers, whose children had intermarried, promised each other to pay a certain sum to the son as a marriage portion. One of them failed to pay according to the agreement, and it was held that the son could not maintain an action for the amount, notwithstanding the relationship between the promisee and the son, and notwithstanding the contract itself stipulated that the son might do so.1

In America also the same general principle has been often adopted. This subject was carefully examined in Exchange Bank v. Rice,5 where Mr. Justice Gray says, "The general rule of law is, that a person who is not a party to a simple contract, and from whom no consideration moves, cannot sue on the contract, and consequently that a promise made by one person to another, for the benefit of a third person who is a stranger to the consideration, will not support an action by the latter." In Edmundson v. Penny,6 Gibson, C. J. says, "The plaintiff must unite in his person both the promise and the consideration of it, in order to recover." A few illustrations of this rule may be given.

In Treat v. Stanton, S. bequeathed $100 to each of five nieces, and appointed T. her executor. He placed the amount of the legacies in the hands of the defendant, who agreed with him to pay the nieces when they became of age, according to the terms of the will. It was held that the executor, and not the nieces, was the proper person to enforce that contract.

In Ross v. Milne,8 the defendant, in consideration of a transfer

1 See Corey v. Powers, 18 Vt. 589 (1846); Bank of the Republic v. Millard, 10 Wall. 156 (1869); Guthrie v. Kerr, 85 Pa. St. 303 (1877).

Bourne v. Mason, I Ventris, 6 (1669); Crow v. Rogers, 1 Str. 592 (1724); Price v. Easton, 4 B. & Ad. 433; 1 N. & M. 303 (1833).