The right of the beneficiary in such a contract to maintain an action was suggested in a number of early English cases, but judicial opinion was almost invariably against it.32 The well-known case of Dutton v. Poole,33 it is true, allowed an action by a child on a promise made to her father, but this decision seems to have been exceptional, and indeed professes not to deny that only a party to a contract could sue upon it. The court held that the child might be so far identified with the parent on account of the nearness of relationship as to be regarded as a party to the contract. This fictitious identification of child with parent may have been more convincing formerly than it is to-day. The same kind of reasoning is to be found in cases on marriage settlements where it is said that the children of a marriage are "within the consideration of the marriage" and may sue upon the covenants for their benefit.34 Dutton v. Poole has been overruled and the marriage settlement cases are generally brought within the principle of trusts. Whatever disadvantages the English law on the question may have, it has at least the merit of definiteness. A beneficiary has no legal rights; 35 and though the cases in equity are not all of them easy to reconcile, it seems probable that he has no equitable rights, either against the promisor or the promisee. Lindley, L. J.., has said: - "An agreement between A and B that B shall pay C gives C no right of action against B. I cannot see that there is in such a case any difference between equity and Common Law. It is a mere question of contract." 36

30 See infra, Sec. 394.

31In Fed v. Peel, 17 W. R. 686, V. C. James decreed specific performance at the suit of a beneficiary, on the ground that the party who had the legal right had suffered no damage.

32 See Viner's Abr. I, 333-337.

33 I Vent. 318, 332; s. c. T. Jones, 102,103; 2 Lev. 210.

34See Peachey on Marriage Settlements, 56 el seq.

35 Tweddle v. Atkinson, 1B. & S. 303; Cleaver v. Mutual Reserve Fund Life Assoc, [1802) 1 Q. B. 147. In the latter case, Lord Esher said that apart from statute a policy of insurance on

A's life payable to his wife gave her no rights. It would be payable to A's executors, and they would not hold as trustees. See also Dunlop Pneumatic Tyre Co. v. Selfridge, [1015] A. C. 847.

So in Ireland, McCoubfay v. Thomson, 2 Ir. Rep. C. L. 228; Clitherce v. Simpson, L. R. 4 lr. 69; and Canada, Faulkner v. Faulkner, 23 Out. 252; Abbinett v. Northwestern L. Ins. Co., 21 N. Brunswick, 216.

In Scotland, however, a beneficiary may be entitled to sue. Dunlop Pneumatic Tyre Co. v. Selfridge, [1915] A. C. 847, 863; Stair's Inst. (1832) I.

The denial of relief to a beneficiary is so obviously unsatisfactory in the case of life insurance policies that by the Married Women's Property Act in England a wife or husband or child, named as beneficiary in a policy, is entitled to the proceeds of the policy though not to sue for them directly.37 But the same reasons which demand that relief shall be given in the case of an insurance policy apply to other contracts where the intention of the promisee was to stipulate for a benefit to a third person. Such bargains are unquestionably valid contracts and the law should have sufficient adaptability to enforce them according to their terms. The case of Tweddle v. Atkinson,38 for instance, is open to as serious criticism as the life insurance case. There the father and father-in-law of the plaintiff agreed that each should pay the plaintiff a sum of money and that he should have power to sue for it. It was held he could not recover on the promise. If the plaintiff could not recover against one who promised to pay him the money, it seems clear that he could have no more rights against the promisee if the latter collected the money from the promisor by way of damages for breach of contract, Were it not for strained decisions on the law of trusts, the English courts would be obliged to make more unfortunate decisions than they do. In Moore v. Darton,39 money was lent to Moore for which he gave this receipt: "Received the 22d of October, 1843, of Miss Darton, for the use of Ann Dye 100, to be paid to her at Miss Darton's decease, but the interest at 4 per cent to be paid to Miss Darton." The court held that a trust for Ann Dye had been created; but the provision as to interest is clear evidence that the transaction was a loan, which Moore promised to repay to a beneficiary instead of to the lender.

105. A possible exception to the general rule in England arises where a devise is made subject to the condition that the devisee shall pay a sum of money to another. The acceptance of the devise was held by Lord Holt to create a personal liability to the beneficiary. Ewer v. Jones, 2 Ld. Ray. 934, 2 Salk. 416, 6 Mod. 25. This was followed in Webb v. Jiggs, 4 M. & S. 113, and not denied in Braithwaite p. Skinner, 5 M. & W. 313, but it was suggested that the value of the devise limited the liability of the devisee. Bee also the English cases stated in Gilpatriok v. Giidden, 81 Me. 137, 18 Atl. 464. For American cases holding the devisee liable see infra, Sec. 370.

36 Re Rotherham Alum & Chemical Co., 25 Ch. D. 103, 111. See also Eley v. Positive, etc., Life Assurance Co., 1 Ex. D. 20, 88; Melhado v. Porto Aiegre Ey. Co., L. R. 9 C. P. 503; Re Empress Engineering Co., 16 Ch. D. 125; Gandy v. Gandy, 30 Ch. D. 57. The remarks in Touche v. Metropolitan Ry. Warehousing Co., L. R. 6 Ch. 671, must be regarded as overruled.

The Irish case of Drimmie v. Davits, [1899] 11. R. 176, however, was a clear case of a promise for the benefit of a third person, and the promise was enforced.

3745&46 Vict.,c.75 Sec.11

38I B. &S. 393.