The common provision in the so-called code States,60 that actions shall be brought in the name of the real party in interest, though sometimes referred to as controlling the question,61 seems properly to have little bearing upon it. The difficult question is whether the third person is the real party in interest. It is a question of substantive law as to the existence of rights rather than of the procedure appropriate for their enforcement. If, as matter of common law, the third person is held entitled to sue in the name of the promisee or to treat the promisee as a trustee for him, the provision would enable the third person to sue directly in his own name. The English common law, certainly, does not admit the indirect right any more than the direct. The provision has served in some States to add another element of confusion.

56 Art. 1890; Code of Practice, Art. 36.

57 Code, Sec.2415.

58Code, Sec.3740.

59Code, (1914)Sec.4246.

60 These statutes are collected in Hepburn, Cues on Code Pleading, 188.

61 Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340, 12 8. W. 564,13 S. W. 249, 7 L. R. A. 77, 25 Am. St. Rep. 536; Smith v. Smith, 5 Bush, 625, 632; Ellis v. Harrison, 104 Mo. 270, 277, 16 S. W. 198. See also Preston v. Preston (Mich.), 172 N. V. 371.