1. Fuller, Lon L., Basic Contract Law (St. Paul, 1947), 520Google Scholar. These remarks appear directly before Fuller's section on third-party beneficiary contracts.

2. Glick, Henry R. and Vines, Kenneth N., “Law-making in the State Judiciary: A Comparative Study of the Judicial Pole in Four States,” Polity 2 (1980): 142–59CrossRefGoogle Scholar; Wold, John T., “Political Orientations, Social Backgrounds and Role Perceptions of State Supreme Court Judges,” Western Political Science Quarterly 27 (1974): 239CrossRefGoogle Scholar; Horwitz, Morton, “The Emergence of an Instrumental Conception of Law,” in The Transformation of American Law, 1780-1860 (Cambridge, 1977), 1–30Google Scholar; Quenedo, Steven M., “Formalist and Instrumentalist Legal Reasoning and Legal Theory” California Law Review 73 (1985): 119Google Scholar; and Becker, Theodore L., Political Behaviorism and Modern Jurisprudence: A Working Theory and Study in Judicial Decision-making (Chicago, 1964Google Scholar).

3. I recognize and appreciate a difference between a “utilitarian” opinion and an “instrumentalist” one, but I find their philosophical underpinnings sufficiently similar to refer to them in the same phrase. In this regard, I can appreciate Robert Summers's term pragmatic instrumentalism. Summers, , Instrumentalism and American Legal Theory (Ithaca, 1982), 20Google Scholar.

4. This is the way that Hurst, J. Willarci conceives of jurists in Law and the Conditions of Freedom in the Nineteenth Century United States (Madison, 1956), 7–24Google Scholar; see also Posner, Richard, Economic Analysis of Law, 3d ed. (Boston, 1986Google Scholar).

5. This is the way that Morton Horwitz thinks jurists functioned; see his The Transformation of American Law, 1780-1860 (Cambridge, 1977), xvi, 140-59, 188Google Scholar.

6. Pound, Roscoe, The Formative Period of American Law (Boston, 1938), 72Google Scholar.

7. See, for example, “Comment” [Marston, Jerrilyn G.], “The Creation of a Common Law Rule: The Fellow Servant Rule, 1837-1860,” University of Pennsylvania Law Review 132 (1984): 590, 594–619Google Scholar; and Beach, C. Paul, Katz, Stanley N., and Sullivan, Barry, “Legal Change and Legal Autonomy: Charitable Trusts in New York, 1777-1893,” Law and History Review 3 (1978): 88–89Google Scholar. Of course, neither Pound nor any others cited espouse a doctrinal method themselves. Pound was himself a “pragmatic instrumentalist,” [see Summers, Robert, Instrumentalism and American Legal Theory (Ithaca, 1982Google Scholar)]. They are simply describing what they believe to have been the prevailing mentalité in antebellum law.

8. White, G. Edward, Tort Law in America: An Intellectual History (New York, 1985), xi, 3, 14Google Scholar, argues that jurists were willing to add to or amend the taught legal tradition, but that they received their signals regarding these amendments from treatise writers and courts of authority (such as those of Massachuesetts and New York) more so than from the economic forces about them.

9. See, for example, Horwitz, Transformation of American Law, 253-66; Gilmore, Grant, The Ages of American Law (New Haven, 1977), 41–67Google Scholar.

10. Friedman, Lawrence, A History of American Law, 2d ed. (New York, 1985), 12, 23Google Scholar.

11. Ibid., 278.

12. 20 N.Y. 268 (1859).

13. Friedman, History of American Law, 534-35.

14. Friedman, Lawrence, Contract Law in America: A Social and Economic Case Study (Madison, 1985), 10, 121-22, 190, 194, 196, 210Google Scholar.

15. Brantly, W. T., Law of Contracts, 2d rev. ed. (Baltimore, 1912), 253, 255, iii, ivGoogle Scholar. Friedman uses qualifying language as well, when he says of Wisconsin's “creative,” and “expeditious” mid-nineteenth-century high court: “But its choice [of rules] was limited to existing common law options. The judges had neither the wish nor the power to break radically with the common law tradition. The tradition assigned a high place to precedent, and denied complete autonomy to the judges.” Friedman, Contract Law, 195.

16. Langdell, C. C., A Summary of the Law of Contracts (Boston, 1880), 79Google Scholar. A similar view was taken by the anonymous author (Langdell?) of “The Right of a Stranger to Maintain an Action upon a Contract,” Central Law Journal 11 (August 27, 1880): 161Google Scholar. After noting that several decisions appeared to be in conflict, the author argued that one “must look beyond the particular question in dispute [that is, the concrete facts in the case, the interests of the parties, and of the economy], and call to his aid the general principles of the law of contracts, in order to determine which [precedent] gives the true exposition of the law.”

17. Kessler, Fredrick and Gilmore, Grant, Contracts, Cases and Materials, 2d ed. (New York, 1970), 1118Google Scholar. I attribute this passage to Gilmore rather than Kessler because neither the first edition of Contracts, Cases and Materials, compiled by Kessler alone, nor the second, compiled by Kessler and Malcolm Sharp (1953), contains this remark.

18. Corbin, Arthur L., “The Law of Third Party Beneficiaries in Pennsylvania,” University of Pennsylvania Law Review 77 (1928): 4Google Scholar; idem, “Contracts for the Benefit of Third Persons,” Yale Law Journal 27 (1918): 1008-9. The phrase is borrowed by Smith, J. Denson, “Third Party Beneficiaries in Louisiana: The Stipulation Pour Autrui,” Tulane Law Review 11 (1936): 58Google Scholar; see also Pomeroy, John Norton, Code Remedies, 15th ed. (Boston, 1929), sec. 77Google Scholar; Corbin, , “Contracts for the Benefit of Third Persons in Connecticut,” Yale Law Journal 31 (1922): 504CrossRefGoogle Scholar; idem, “Contracts for the Benefit of Third Persons,” Law Quarterly Review 46 (1930): 13, 19; idem, “Third Persons as Beneficiaries of Contractor's Surety Bonds,” Yale Law Journal 38 (1928): 1.

19. Friedman does point out some twentieth-century utilitarian uses of the rule by Wisconsin's high court, but these, as he himself notes, do not occur until long after the rule itself had been established by a previous generation of jurists. Freidman, Contract Law, 121 and footnotes.

20. Friedman, History of American Law, 534. Cf. Waters, Anthony Jon, “The Property in the Promise: A Study of the Third Party Beneficiary Rule,” Harvard Law Review 98 (1984): 1111, 1112, 1113, and 1116Google Scholar: Lawrence v. Fox “defied the prevailing rules,” constituted an “abrupt change,” and made “possible the birth of the third party beneficiary rule.” The rights of third parties “had long been beyond the scope of contractual obligation [in America before Lawrence v. Fox].”

21. See, for example, Browne, Irving, ed., English Ruling Cases, 13 vols. (London, 1894-1899), 1: 706Google Scholar; Williston, Samuel, “Contracts for the Benefit of a Third Person,” Harvard Law Review 15 (1901): 785Google Scholar; Knapp, Charles, Problems in Contract Law (Boston, 1976), 1133Google Scholar; Simpson, L. P., “Promises without Consideration and Third Party Beneficiary Contracts in American and English Law,” International and Comparative Law Quarterly 15 (1966): 835, at 853Google Scholar. Arthur Corbin knew better; his research had identified one key New York precedent for Lawrence v. Fox—Delaware and Hudson Canal Co. v. Westchester Bank, 4 Denio (N. Y.) 97 (1847)—and he consequently observed that “the decision of Lawrence v. Fox can hardly, therefore, be said to have created a new rule of law.” Corbin, Contracts (1951), 4: sec. 788, 303. Nevertheless, Corbin still styled Lawrence v. Fox “the leading case,” and had no such comment about other precendents for that case from New York, Pennsylvania, or Massachusetts courts in his massive treatise. See also the remark of Justice William Allen in Vrooman v. Turner, 69 N. Y. 280, at 285 (1877): “The doctrine of Lawrence v. Fox… was not first adopted in this state by the decision of that case. It was expressly adjudged as early as 1825, in Farley v. Cleveland, 4 Cow. 431….” See also Friedman, Contract Law, 121n: “Dictum in Hodson v. Carter, 3 Pin. 212, 3 Chand. 234 (Wis.) (1851), seemed to foreshadow [Lawrence v. Fox] but went unnoticed.”

22. Century Edition of the American Digest (St. Paul, 1899), 11Google Scholar: cols. 290-300, 829-72; Williston, “Contracts”; Moch, William and Hale, W. B., eds., Corpus Juris (New York, 1917), 13: 602, 609, 701–12Google Scholar. I did not include appellate cases where the “third-party beneficiary” was present when the contract was made and gave assent, as in Van Eman v. Stanchfield, 10 Minn. 255 (1965), nor did I include cases where the suit was originally brought in equity by a true cestui que trust, as in Rodney v. Shankland, 1 Del. Ch. 35 (1818), or where the court was satisfied by the reported facts that the contract only incidentally made a third party into a potential beneficiary (thus a promise to give someone a Buick if he would not sue me would not make the Buick Motor Company a third-party beneficiary). Ex: N.O. St. Joseph's Assoc. v. Magnier, 16 La. Ann. 338 (1861); Lake Ontario Shore RR v. Curtiss, 80 N. Y. 219 (1880); MacKintosh v. Fatman, 38 How. Prac. (N. Y. Sup. Ct.) 145 (1869); Edick v. Green, 38 Hun (N. Y. Sup. Ct.) 202 (1885) Burton v. Larkin, 36 Kan. 246 (1887); Wright v. Terry, 23 Fla. 160 (1887); Crandall v. Payne, 154 Ill. 627 (1895); American Exchange Natl. Bank v. Northern Pacific RR Co., 76 Fed. 130 (1896); and Sayward v. Dexter, Horton & Co. 72 Fed 765 (1896). Nor did I include cases where the evidence indicated clearly (and the court so ruled) that the defendant was actually and agent or bailee of the plaintiff. Ex: Lapham v. Green, 9 Vt. 407 (1838); Cox v. Skeen, 24 N. C. 220 (1842); Pettyjohn v. Hudson, 4 Harr. (Del.) 468 (1847); Creager v. Link, 7 Md. 259 (1854); Brice v. King, 1 Head (38 Tenn.) 152 (1858); Taylor v. Taylor, 20 Ill. 650 (1858); Goodwin v. Bowden, 54 Me. 424 (1867). I recognize that jurists do sometimes “bend” the facts to bring them within a doctrine or principle that allows them to reach a desired outcome, but the absence of any dissent claiming that a “legal fiction” was being used [ex: Gifford v. Corrigan, 117 N. Y. 257, 22 NE 756 (1889)], the fact that, on balance, the inclusion of these cases would have strengthened my thesis, and the relative infrequency of such exclusion decisions (perhaps nineteen or twenty in all) leads me to conclude that I was justified in excluding them as cases falling outside of the boudaries of the third-party beneficiary issue.

23. 121 E. R. 762 (Q.B., 1861).

24. For copies of chronologically ordered lists of these English and American cases, divided further into creditor beneficiary and gift beneficiary categories, contact Peter Karsten, Department of History, University of Pittsburgh, Pittsburgh, PA 15260.

25. See, for example, McBride v. Floyd, 2 Bailey (S. C.) 209 (1831); Warren v. Batchelder, 16 N. H. 580 (1845); Brown v. O'Brian, 1 Rich. (S. C.) 268 (1854); and Bell v. McGrady, 32 Ga. 257 (1861).

26. See Johnson, Herbert A., The Law Merchant and Negotiable Instruments in Colonial New York, 1664 to 1730 (Chicago, 1963Google Scholar); Klein, Joseph, “The Development of Mercantilist Instruments of Credit in the United States,” Journal of Accountancy 12 (1911): 321Google Scholar; Dailey, Don, “The Early Development of the Note Brokerage Business in Chicago,” Journal of Political Economy 46 (1938): 203CrossRefGoogle Scholar; Coleman, Peter J., Debtors and Creditors in America (New York, 1974Google Scholar); Freyer, Tony, “Antebellum Commercial Law Journal: Common Law approaches to Secured Transactions,” Kentucky Law Journal 70 (1981): 593Google Scholar; Bogue, Alan, Money at Interest: The Farm Mortgage on the Middle Border (New York, 1968Google Scholar); and Steffen, Charles, “The Rise of the Independent Merchant in the Chesapeake: Baltimore County, 1660-1769,” 76 Journal of American History 76 (June 1989CrossRefGoogle Scholar): (note to Table 2).

27. Our model-builders playing “legal realist” or “law and economics” theorists would have the advantage of seeing the observation of the unnamed “prominent Wall Street practitioner” quoted by Murphy, Edward J. and Speidel, Richard, eds., Studies in Contract Law (Mineola N. Y., 1970), 1280Google Scholar: “Of all the material studied in the first year of law school, the third-party beneficiary area is perhaps the most relevant to actual corporate practice” (regarding such matters as acquisitions, stock issues, and shareholder's aggreements).

28. Friedman may be said to anticipate such a vision where he writes, regarding contract cases decided after 1850 in America, that judges were “tempted to do justice in the particular case…. Contract law—that is, the doctrines applied to appeal courts in actual cases, rather than the basic regime of contracts—was not a vital prop of the economy…. Why not warp the rules to do the right thing for this litigant?” (Friedman, History of American Law, 534). But where I see the rule-warping as one that particularly favored gift-beneficiaries, Friedman's remark is in a chapter on commerical law. For further attention to this ussue see infra notes 202, 280, 284, 299, 309, and especially 327 and 328.

29. Yearbook, 36 Hen VI, Fol. 8, pl. 5, cited in Hening, Crawford D., “History of the Beneficiary's Action in Asssumpsit,” Select Essays in Anglo-American Legal History, 3 vols. (Boston, 1907-1909), 3: 339–50Google Scholar; Simpson, A. W. B., A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Oxford, 1975), 153-60, 183–85Google Scholar.

30. Munkman, John, The Law of Quasi-Contracts (London, 1950), 5Google Scholar.

31. Core v. Woddye, 1 Dyer 20, 73 E.R. 42 (K.B. 1537).

32. Supra note 29. Cf. Sir Edward Cokle, C. J.: “if a man delivers money unto I. S. to my use,… I may have an action of debt or account against him for the same, at my election.” Clark Case, Godb. 210, 78 E. R. 128 (K. B. 1614).

33. Whorewood v. Shaw, Yelverton 25, 80 E. R. 18 (Q. B. 1603); cf. Hening, “History of the Beneficiary” 350-58.

34. The phrase is of course, Maitland's: The History of English Law, 2 vols. (Cambridge, 1895), 2: 525Google Scholar.

35. That is to say, the defendant could not opt to produce a passel of witnesses who would swear that he had discharged the debt, thus non-suiting the plaintiff without further ado. Windeyer, W. J. V., Lectures on Legal History, 2d rev. ed. (Sydney, 1957), 106–9Google Scholar. Cf. Kevin Teeven, “Proving Fifteenth-Century Promises” Osgoods Law Journal (1986): 121.

36. In Slade's Case, 4 Co. Rep. 920, 76 E. R. 1074 (K. B. & E.X., 1603). See Harding, Alan, A Social History of English Law (London, 1966), 104Google Scholar; Jackson, R. M., The History of Quasi-Contract in English Law (Cambridge, 1836), 30–36Google Scholar; Simpson, A History of the Common Law; and Munkman Quasi-Contracts, 52-3.

37. See, for example, Manwood v. Burston, 2 Leon. 203 at 205, 74 E. R. 479 (Ex. 1587) and Crewe's Case (1584), noted therein; Body v. A., Goulds. 49, 75 E. R. 986 (Q. B. 1587); Level [or Lever] v. Heyes [or Hawes], Moore (K. B.) 550, 72 E. R. 751 (Q. B. 1599), and Hetley 176, 124 E. R. 433 (C. P. 1599), and Cro. Eliz. 619, 78 E. R. 860 (Q. B. 1599); Rippon v. Norton, Cro. Eliz. 849, 78 E. R. 1074 (Q. B. 1602); Gilbert v. Ruddeard, 3 Dyer 272 b(n), 73 E. R. 606 (K. B. 1607); Legat's Case, Latch 206, 82 E. R. 348 (K. B. 1655); Sprat v. Agar, 2 Sid. 116, 82 E. R. 1287 (K. B. 1658); Bell v. Chaplain, Hardres 321, 145 E. R. 478 (Ex. 1664); Cooker v. Child., 2 Lev. 74, 83 E. R. 456 (K. B. 1664); Hornsey V. Dimocke, 1 Vent. 119, 86 E. R. 82 (K.B. 1672); Brown v. London, 1 Vent. 153, 86 E. R. 104 (K. B. 1672); Curtis v. Collingwood, 1 Vent. 297, 86 E. R. 192 (K. B. 1676) (reported in 3 Keb. 434, 84 E. R. 808 (K. B. 1674) as “Corny & Curtis v. Collidon”); Baleild v. Collard, Aleyn 1, 82 E. R. 882 (K. B. 1681); Comb. 341 (untr.), N. P., 1695, in Sources in English Legal History, ed. Baker, J. H. and Milsom, S. F. C. (London, 1986Google Scholar); Yard v. Eland, 1 Ld. Raym, 369, 91 E. R. 1143 (K. B. 1699).

38. Comment, “Third Party Beneficiary Contracts in England,” University of Chicago Law Review 35 (1968): 553Google Scholar; Jackson, , History of Quasi-Contract, 31, 93Google Scholar; Simpson, History of Common Law, 476; Goff, Robert and Jones, Gareth, The Law of Restitution, 2d ed. (London, 1978), 401Google Scholar; Ames, James Barr, Lectures of Legal History (Cambridge, 1913), 119Google Scholar. An early exception regarding “consideration” is the case of Howlett v. Osbourn, Cro. Eliz. 380, 78 E. R. 627 (Q. B. 1595), where the third-party beneficiary's action in assumpsit appears to have failed for what would later be called lack of consideration moving from the plaintiff.

39. Starkey v. Mill, Style 296, 82 E. R. 723 (K. B. 1651). Two justices agreed with Roll; one “doubted.”

40. Dutton v. Poole, Lev. 210, 83 E. R. 523 (K. B., 167 affirmed on appeal to the Court of Exchequer, T. Ray. 302, 83 E. R. 156 (Ex. 1677). The court of King's Bench cited Starkey v. Mill in the process. Chancery also regarded “moral consideration” as sufficient. Windeyer, Lectures, 238. Jones, J., objected at first that the daughter had no standing, “being not privy to the promise, nor consideration,” and cited a comparable unreported case, Norris v. Pine, decided six years before by the same court, but after consulting with his colleagues he joined them and annouced (524) that “he was never well satisfied with the judgment” in that case “but being it was resolved he was loth to give his opinion so suddenly against it.”

A. W. B. Simpson noted that this concept of “moral” consideration in Dutton v. Poole “appears little short of weird” to a modern lawyer “because we tend to forget the fact that the original reason why the presence of consideration for a promise provided an argument for allowing that promise to be sued upon was that some principle of common-sense morality suggested that the promise ought to be performed.” Simpson, History of the Common Law, 482. For an example of Simpson's point see the remark of Cozzens, the plaintiff's attorney in Arnold v. Lyman, 17 Mass, 400, at 403 (1821Google Scholar), when he reluctantly allowed regarding the “nearness” of kin rule and “moral consideration” in Dutton that “there does not seem to be much meaning in this reason….”

41. Martyn v. Hinde, 2 Cowp. 437 at 443, 98 E. R. 1174, at 1178 (K. B. 1776).

42. Trade-Man's Lawyer (1703), 64, cited in Palmer, Vernon, “The History of Privity: The Formative Period (1500-1680),” 23 American Journal of Legal History 23Google Scholar. See also Marchington v. Vernon, 1 (Bos. & Pull. 101n, 126 E. R. 801n) (C. P. 1989): 35. 1787), where Buller, J., supported a suit by a third-party creditor-beneficiary and cited Dutton v. Poole and Martyn v. Hinde; Israel v. Douglas, 1 H. B.I. 240, 126 E. R. 139 (C. P. 1789).

43. Bourne v. Mason, 1 Vent. 6, 86 E. R. 5; 2 Keb., 457, 84 E. R. 287 (K. B., 1669); Crow v. Rogers, 1 Strange 592, 93 E. R. 719 (K. B. 1727). Cf. Ward v. Evans, 2 Ld. Ray. 928, 92 E. R. 120 (K. B. 1704).

44. Viner, Charles, A General Abridgement of Law and Equity (London, 1791), 1: 333–37Google Scholar; Cf. Comyns, T., Comyns Digest (London, 1762-67), 156Google Scholar (E).

45. Harris v. DeBervoir, Cro. Jac. 688, 79 E. R. 596 (K. B. 1624) (Lea and Doderidge, J. J.)

46. See Barbour, Willard T., History of Contract in Early English Equity (Oxford, 1914), 107, 126, 164–66Google Scholar, for evidence of fifteenth-century Chancery impatience with defendants who had broken promises made on behalf of third-part beneficiaries. See also Pollard v. Dowens, 2 Chan. Cas. 121 (1682); Tomlinson v. Gill, Amb. 330, 27 E. R. 221 (Ch. 1756); Touche v. Metropolitan Company, L. R. 6 Ch. App. 671, at 676-77 (1871); Peel v. Peel, 17 W. R. 586 (Ch. 1869); Masters of the Rolls Sir William Grant in Gregory v. Williams, 3 Mer. 582, 36 E. R. 224 (Ch. 1817); M'Fadden v. Jenkyns, 1 Ph. 152, 41 E. R. 589 (Ch. 1842); Fletcher v. Fletcher, 4 Hare 67, 67 E. R. 564 (Vice-Ch. 1844); Moore v. Darton, 4 De G. & Sm. 517, 64 E. R. 938, (Ch. 1851); and Page v. Cox, 10 Hare 163, 68 E. R. 882 (Ch. 1852). See also Lilly v. Hays, 5 Ad. & Ell. 548, 111 E. R. 1272 (K. B. 1836), where the defendant (B) was treated (perhaps fictionally) by the court as having become the “agent” of the third-party beneficiary (C) when he received money from the promisee (A) to pay A's one-hundred-pound debt to C. For an American example of the defendant being viewed by the court as the agent of the third-party beneficiary, see Town of Arlington v. Hinds, 1 D. Chip. (Vt.) 431 (1824).

47. Parsons v. Freeman, Ambler 115, E. R. 75 (Ch. 1751). Lord Hardwicke believed this sort of case to be “as strong… as can well come before the court,” but a number of his nineteenth-century American counterparts felt otherwise. See infra notes 171 and 176.

48. Carnegie v. Waugh, 2 Dowl. & R. 277 (1823); Fruhling v. Schroeder, 2 Bing. (N.C.) 78, 132 E.R. 31 (C.P. 1835). The plaintiffs plea for interest on the monies held was not approved, however.

49. Williams v. Everett, 14 East 582, 104 E. R. 725 (K. B. 1811); Price v. Easton, 4 Barn. & Ad. 433, 110 E.R. 518 (K.B. 1833); Colyear v. Countess of Mulgrave, 2 Keen 81, 48 E.R. 559 (Rolls 1836); Barford v. Stuckey, 2 Bro. & B. 333, 129 E.R. 995 (C.P. 1820); Wharton v. Walker, 4 B. & C. 165, 107 E. R. (K. B. 1825); Liversedge v. Broadbent, 4 H. & N. 604, 157 E. R. 978, at 981 (Ex. 1859); Tweddle v. Atkinson, 1 B. & S. 396, 121 E. R. 763 (Q. B. 1861). Cf. Windeyer, Lectures, 237-40.

50. Chitty, Joseph Jr., Contracts (London, 1842), 53Google Scholar.

51. Palmer, “The History of Privity,” 40-50, 52.

52. Corbin, supra note 18; Williams, Glanville, “Contracts for the Benefit of Third Parties,” Modern Law Review 7 (1944): 123CrossRefGoogle Scholar; Comment, “Third-Party Beneficiary Contracts,” 553.

53. Tweddle v. Atkinson, 1 B. & S. 396, at 398, 121 E.R. 762, at 763 (Q.B. 1861).

54. Hening, “History of the Beneficiary's Action,” 367.

55. Hybart v. Parker, 4 C.B. (N.S.) 209, at 214, 140 E.R. 1063, at 1065 (C.P. 1858).

56. But see Atiyah, Patrick S., The Rise and Fall of Freedom of Contract (Oxford, 1979), 372-83, 481-82, 492Google Scholar; and Evans, Jim, “Precedent in the 19th Century,” in Precedent in Law, ed. Goldstein, Laurence (Oxford, 1987), 67–68Google Scholar.

57. See Denning, Lord, The Discipline of Law (London, 1979Google Scholar); Denning, L.J., in Drive Yourself Hire Co. v. Strutt, 1 Q. B. 250, 274-75 (1954); Smith & Snipes Hall Farm, Ltd. v. River Douglas Catchment Bd., 2 K. B. 500, 514-17 (1949); and Beswick v. Beswick, 3 W.L.R. 932, 939-40, 948-49, 953-54, 963-4 (1967).

58. Corbin, supra note 18, pp. 13, 19, 36; Corbin, Contracts, 4: secs. 844-49, 370-85; cf. Williams, “Contracts for the Benefit”; Gower, L.C.B., review of Corbin on Contract, Yale Law Journal 61 (1952): 1103Google Scholar.

59. Comment, “Third-Party Beneficiary Contracts,” 556, citing Green v. Russell, 2 Q.B. 226 (1959Google Scholar), 3 W.L.R. 17 (1959Google Scholar), 2 All. E.R. 525 (1959Google Scholar); In re Schebsman, Ch. 83 (C.A. 1943) dismissing appeal from Ch. 366 (1943); Beswick v. Beswick, 3 W.L.R. 932 (1967), A.C. 58 (1968).

60. Horwitz, “The Emergence”; Llewellyn, Karl, The Common Law Tradition: Deciding Appeals (Boston, 1960), 37Google Scholar; and Hurst, Law and Conditions, 3-32.

61. See Steffen, “Rise of the Independent Merchant,” 31.

62. Carnegie v. Morrison, 43 Mass. (2 Met.) 381, at 405 (1841).

63. Crow, in particular, was first reported (by Sir John Strange) in his Reports in 1755; the next editions of Strange's Reports, especially the third in 1795, were more likely to have been available in America than the first. According to Daniel Boorstin, only about one-fifth of the 150 English case report volumes published by 1775 were used in the colonies. The Americans: The Colonial Experience (New York: 1958), 200Google Scholar.

64. Schemerhorn v. Vanderheyden, 1 Johns. (N.Y.) 139 (1806) (concerning a gift of a cherry desk). The Per Curiam opinion of the New York Supreme Court of Judicature, allowing the third-party beneficiary to sue and citing Dutton v. Poole, was probably written by Chief Justice James Kent. See Kent to Washington, Thomas, in Select Essays in Anglo-American Legal History, 3 vols. (Boston, 1907), 1:844Google Scholar. Felton v. Dickinson, 10 Mass. 287 (1813Google Scholar) (concerning an apprentice labor contract) (per curiam). Dunlap v. Silver, 1 Cranch (5 U.S.) 428 (1803); Lawrason v. Mason, 3 Cranch (7 U.S.) 492 (1806); Weston v. Barker, 12 Johns. (N.Y.) 274 (1813); Mayor, et al. v. Duplessis, 5 Martin O.S. (La.) 309 (1818); Mayor, et al, v. Bailey, 5 Martin O.S. (La) 321 (1818); Goodridge v. Lord, 10 Mass. 483 (1813); Arnold v. Lyman, 17 Mass. 400 (1821); Hall v. Marston, 17 Mass. 575 (1822); Cabot v. Haskins, 3 Pick. (20 Mass.) 83 (1825); Farley v. Cleveland, 4 Cow. (N.Y.) 431 (1825); Fisher v. Ellis, 3 Pick. (20 Mass.) 321 (1825).

65. Schemerhorn and Felton, supra, note 64. The reference to Roll, C.J., is to that jurist's opinion in Starkey v. Mill, supra note 39.

66. Butterfield v. Hartshorn, 7 N.H. 345 (1834); Nevins v. Rockinham Mutual Fire Ins. Co., 25 N.H. 22 (1852); Blymire v. Boistle, 6 Watts (Pa.) 182 (1837); Ramsdale v. Horton, 3 Pa. 330 (1846); Vincent v. Watson, 18 Pa. 96 (1851); Crampton v. Ballard, 10 Vt. 254 (1838); Hall v. Huntoon, 17 Vy. 244 (1845); Carey v. Powers, 18 Vt. 587 (1846); Ross v. Milne, 12 Leigh (Va.) 204 (1841); Salmon v. Brown, 6 Blackf. (Ind.) 347 (1842); Farlow v. Kemp, 7 Blackf. (Ind.) 544 (1845); Fitch v. Chandler, 58 Mass. 254 (1849); Mellen v. Whipple, 67 Mass. 317 (1854); Dow v. Clark, 73 Mass. 198 (1856); Jones v. Miller; 12 Mo. 408 (1849); Manny v. Frazier's Adm., 27 Mo. 419 (1860) (citing Blymire v. Boistle) (1858); Eickelberger v. Murdock 10 Md. 373 (1857) (citing Williams v. Everett, supra note 49); Styron v. Bell, 53 N.C. 222 (citing Addison on Contracts, infra note 68 and Butterfield v. Hartshorn).

67. Crocker v. Higgins, 7 Ct. 342 (citing cases from England, New York, and Massachusetts) (1829); Steene v. Aylesworth, 18 Ct. 244 (1846) (citing Pigott v. Thompson, 3 Bos. & P. 149, 127 E.R. 80 [C.P. 1802], Dutton v. Poole, supra note 40, Comyns's Digest and Chitty on Pleading, infra note 68); McCarty v. Blevins, 5 Yerg. (Tenn.) 195 (1833); Brown v. O'Brien, 1 Rich. (S.C.) 268 (1845) (citing Schemerhorn, supra note 64, and effectively overruling M'Bride v. Floyd, 2 Bailey (S.C.) 209, which had denied the third-party beneficiary the right to sue on privity grounds); Thompson, et al, v. Gordon, 3 Strob. (S.C.) 196 (1848); Motley v. Manufacturer's Ins. Co., 29 Me. 337 (1849); Bohanan v. Pope, 42 Me. 93 (1856); Lewis v. Sawyer, 44 Me. 332 (1857); Crumbaugh v. Kugler, 3 Ohio St. 544 (1854) (citing Chitty on Pleading); Thompson v. Thompson, 4 Ohio St. 333 (1854); Bagaley v. Waters, 7 Ohio St. 359 (1857); Van Dyne v. Vreeland, 11 N.J. Eq. 370 (1857) (citing “Benton” v. Poole, supra note 40, and Schemerhorn, supra note 64); Barringer v. Warden, 12 Cal. 311 (1859); Clarke v. McFarland's Ex., 5 Dana (Ky.) 45 (1837); Lucas v. Chamberlain, 8 B. Mon. (47 Ky.) 276 (1848); Lovely v. Caldwell, 4 Ala. 684 (1843); Eldridge v. Turner, 11 Ala. 1049 (1847); Garrett's Adm. v. Garrett and Garrett, 27 Ala. 687 (1855); Shotwell v. Gilkey's Adm., 31 Ala. 724 (1858); Hodson v. Carter; 3 Pin. (Wis.) 212 (1851) (citing “1 Chitty on Pleading 4 and cases cited therein”); Eddy v. Roberts, 17 Ill. 505 (1856); Brown v. Strait, 19 Ill. 88 (1857); Bristow v. Lane, 21 Ill. 194 (1859). See also Flood v. Thomas, 5 Martin N.S. (La.) 560 (1827); Flower v. Lane, 6 Martin N.S. (La.) 151 (1827); Union Bank of La. v. Bowman, 9 La. Ann 195 (1854); Ellwood v. Monk, 5 Wend. (N.Y.) 235 (1830); Farmer's Bank v. Brown, 1 Harr. Del. R. 330 (1834); Felch v. Taylor, 30 Mass. 133 (1832); Thredqill v. Pintard, 53 U.S. 24 (1851) (with references to Chitty on Contracts and English cases).

68. Chitty, Joseph, A Treatise on the Parties to Actions, the Forms of Actions, and on Pleading, ed. Dunlap, John A., 4th Amer. ed., 3 vols. (Philadelphia, 1825), 1:4–5Google Scholar; Comyn, Samuel, A Treatise of the Law Relating to Contracts, 1st Amer. ed., 2 vols. (Flatbush, N.Y., 1809), 1:26Google Scholar, 3d Amer. ed. (Brookfield, Mass., 1823), 1:23; Powell, John Joseph, An Essay upon the Law of Contracts and Agreements (London, 1790), 352–53Google Scholar; Hammond, Anthony, A Practical Treatise on Parties to Action…, 1st Amer. ed. (Exeter, N.H., 1822), 6–11Google Scholar; Hammond, Anthony, Digest of Laws of England by… Sir John Comyns…, ed. Day, Thomas, 1st Amer. ed. (Philadelphia, 1826Google Scholar), “Assumpsit E”; Lawes, Edward, A Practical Treatise on Pleading in Assumpit, ed. Story, Joseph (Boston, 1811), 93, 97Google Scholar; Addison, Charles G., A Treatise on the Law of Contract and Parties to Action ex contractu (London, 1847), book 1, ch. 1, sec. 2, p. 23Google Scholar.

69. Kent, James, Commentaries on American Law, 4 vols. (New York, 1826-1829), 2:365Google Scholar (ref. is in 30 Vt. 277); Story, W. W., A Treatise on the Law of Contracts not under Seal (Boston, 1844), 82–83Google Scholar (sec. 130); Wilson, Bird, A New Abridgment of the Law by Matthew Bacon, 1st Amer. ed., 6th London ed., 7 vols. (Philadelphia, 1811), 1:271Google Scholar: “a person for whose benefit a promise is made to another may maintain an action on it, though no consideration pass from him to the defendant, nor any promise to him directly from the defendant.” Judge Wilson cited Dutton, Martyn v. Hinde, Bourne, Crow, Charles Viner's Abridgement, and the two cases reported by William Cranch (supra note 64).

70. See, for example, Lucas v. Chamberlain, Hodson v. Carter, Steene v. Aylesworth, Crumbaugh v. Kugler, Thredgill v. Pintard, Eddy v. Roberts, supra note 67 and Allen v. Thomas, 3 Mete. (60 Ky.) 198 (1860); Steene v. Aylesworth, Clarke v. McFarland's Ex., supra note 67, Felton v. Kickinson, supra note 64, and Hall v. Marston, supra note 64; Butterfield v. Hartshorn, supra note 66, Warren v. Batchelder, 16 N.H. 580 (1845), and Warden v. Burnham, 8 Vt. 390 (1836). It is surely no coincidence that the first American edition of Hammond's Parties to Action was published in New Hampshire twelve years before the New Hampshire Supreme Court used its language in Butterfield to produce the first American reception of the “new” English rule.

71. In Owings v. Owings, 1 H. & G. (Md.) 485, at 491 (1827); cf. Chief Justice George Robertson in Clarke v. McFarlands Ex., 5 Dana (35 Ky.) 45, at 46 (1837), referring to Chitty on Contracts.

72. See, for example, Dunlop v. Silver, and Schemerhorn v. Vanderheyden, supra note 64, and Lovely v. Caldwell, 4 Ala. 684 (1843), where Justice John Ormond prefaced his citations of English cases on the subject with the words “it is laid down in the books….”

73. Cabot v. Haskins, supra note 64, Crocker v. Higgins, Steene v. Aylesworth, Thredgill v. Pintard, and Van Dyne v. Vreeland, supra note 67, and Hind v. Holdship, 2 Watts (Pa.) 104 (1833).

74. Justice John Jewett in Barker v. Bucklin, 2 Denio (N.Y.) 45 (1846).

75. Supra note 64 and supra note 39 (Starkey v. Mill); cf. Justice James Kent in Neilson v. Blight, 1 Johns. Cas. 205, at 210 (N.Y., 1799); see also the language of the Court of Exchequer in Slade's Case (4 Co. R. 926, 76 E.R. 1074, at 1077 [1602]): “every contract executory imports in itself an assumpsit.” I allow, however, that Shaw's language may constitute an example of what Lon Fuller saw as the evolutionary way that the common law has “of creeping up on us, and at any point, it is difficult to say whether the court is announcing a new rule or only making explicit assumptions which lay implicit in the old rule.” Fuller, , The Law in Quest of Itself (Evanston, 1940), 133Google Scholar.

76. Carnegie v. Morrison, 43 Mass. (2 Metc.) 381, at 386-93, 402, 405 (1841).

77. In Farwell v. Boston & Worcester RR, 45 Mass. (4 Met.) 49 (1842).

78. 2 Denio (N.Y.) 45 (1846).

79. Supra note 21; Lawes, , Practical Treatise… (Boston, 1811), 93, 98Google Scholar (“In some cases one man many may maintain an action upon a promise made to another, if it be to do a thing for his benefit”).

80. Supra note 12. For a detailed analysis of the case from trial court through both appellate levels, see Waters, supra note 20, 1116-133.

81. Justice Francis Finch in Gifford v. Corrigan, 117 N.Y. 257, 22 Ne. 756 (1889).

82. Friedman, History of American Law, 391-92.

83. At 274 and 275.

84. Eddy v. Roberts, 17 Ill. 505 (1856).

85. Briston v. Lane, 21 Ill. 194, at 197-98 (1859). Note that the third-party beneficiary plaintiffs in this case were out-of-state partners from Philadelphia and New York, enabled by Breese's opinion to sue an Illinois defendant. Cf. Brown v. Strait, 19 Ill. 88 (1857).

86. Blasley v. Webster, 64 Ill. 458 (1872) (a builder with a mechanic's lien suing the buyer of the house); Rogers v. Herron, 92 Ill. 583 (1879) (a mortgagee suing a grantee); Lawrence v. Oglesby, 178 Ill 122, 52 N.W. 945 (1800) (a daughter-donee suing to obtain a gift).

87. 7 N.H. 345, at 351 (1834).

88. Warren v. Batchelder, 15 N.H. 129, at 136 (1844); Hammond, A Practical Treatise; Crow, supra note 43. The court reviewed and reversed this decision a year later (16 N.H. 580) after being persuaded that consideration had moved from this third-party creditor-beneficiary plaintiff when he called on the defendant for the money left for him by the plaintiff's debtor. The court decided that this act effectively extinguished the former debt and created a new one between plaintiff and defendant with the necessary privity and consideration between them (at 586), and, once again, it reviewed nine English precedents at length, including Buller's note in Marchington (supra note 42), Dutton v. Poole (supra note 40), and Ward v. Evans (supra note 43). Justice Andrew Salter Woods was particularly struck by the similarity of facts in Ward v. Evans and the case at hand, and by Chief Justice Holt's remark in Ward that the monies placed in the defendant's hands for the plaintiff in repayment of a debt were for his “use.” This prompted Woods to describe the transaction in equitable terms as a kind of trust fund.

89. Justice Ellery Hibbard in Land v. Henry, 54 N.H. 57, at 64 (1873), borrowing the language (“anomalous doctrine”) of Justice Theron Metcalf of Massachusetts in Dow v. Clark, infra note 150. Cf. Chamberlain v. New Hampshire Fire Ins. Co., 55 N.H. 249 (1875).

90. In Brewer v. Dyer, 61 Mass. 337, at 340 (1851).

91. 67 Mass. 317 (1854); American Jurist (Oct., 1839), 17. According to Justice Elisha Potter of the Rhode Island Supreme Court, Bishop “claims the credit of having suggested and urged on the [Melon] court” much of the argument Metcalf was to use in leading the Massachusetts court away from its initial third party beneficiary rule. Potter in Merriman et al, Assignees of Ballou Manufacturing v. The Social Manufacturing Co., 12 R.I. 175, at 185 (1878). Potter, also claimed that Metcalf later helped Bishop write of the third-party beneficiary problem in Bishop's, First Book of the Law, Explaining the Nature, Sources, Books, and Practical Applications of Legal Science… (Boston, 1868), sec. 467Google Scholar. But see also Metcalf's own discussion of the third-party beneficiary question in Metcalf, , Principles of the Law of Contracts, as Applied by Courts of Law (Boston, 1867), 205Google Scholar.

92. At 320. Parsons, T. Jr., The Law of Contracts (Boston, 1853), I, 390Google Scholar. This same language was to be used in all future editions of Parsons on Contracts (1:466), and it was not until the seventh edition (by William Kellen in 1883) that a single contrary American opinion of the Massachusetts court: Exchange Bank v. Rice, 107 Mass. 37 (1871) was cited in the editors' footnotes.

93. At 319 and 321; note that Chief Justice Shaw and Justice Bigelow joined in this opinion.

94. This had been the fact situation in the early Massachusetts cases of Arnold v. Lyman and Hall v. Marston, supra note 64, and Carnegie v. Morrison, supra note 76, and this “exception” was applied in two later cases, Frost v. Gage, 89 Mass. 262 (1861) and Putman v. Field, 103 Mass. 556 (1870).

95. This exception, the situation in Brewer v. Dyer (supra note 90), was based on the theory that the defendant had assumed (by making initial rental payments) a preexisting debt of the lessee to the lessor. Hence the promisee's privity with the third-party beneficiary was deemed sufficient to allow the suit. A later Massachusetts court was not satisfied with this reasoning. See Justice Horace Gray in Exchange Bank v. Rice, 107 Mass. 37, at 43 (1871).

96. Dow v. Clark, 73 Mass. 198, at 202 (1856). Metcalfs phrase was borrowed by Justice Ellery Hibbard of New Hampshire in Lang v. Henry, supra note 89, Justice Elisha Carpenter of Connecticut in Meech v. Ensign, 49 Ct. 191, at 209 (1881), Justice Ebenezer Wells in Lehow v. Simonton, 3 Colo. 346, at 348 (1877), and Chief Justice Byron Elliott, dissenting in Carnahan v. Tousey, 93 Ind. 561, at 568 (1882).

97. See infra notes 156 and 157.

98. 44 N.C. 173, at 175 (1852); Nash cited Lilley v. Hays, supra note 46.

99. In Mellen v. Whipple, supra note 94.

100. Cuxon v. Chadley, 3 B. & C. 591, 10 E.C.L. 191, 107 E.R. 853 (K.B. 1825).

101. 53 N.C. 222 (1860).

102. See Morehead v. Adms. of Orr, 73 N.C. 399 (1875), and Peacock v. Williams, 98 N.C. 324, 4 SE 550 (1887). In Porter v. Richmond & DR Co, 97 N.C. 46, 2 SE 374 (1887), Justice Augustus Merrimon allowed a Charlotte policeman to sue a railroad directly for that portion of his salary that the company had promised to pay the city's aldermen for him. The contract was with the policeman “in substance and legal effect,” and the court could find no “essential” reason that his wages “should go into the hands of the board of aldermen, and thence into his own hands. That would be a useless sort of circumambulation that ill comports with practical business transactions” (377-78. While this language might well be styled “utilitarian,” it is worth noting that the North Carolina legislature had adopted the “Field” procedural reform code in 1868, directing the state's courts to avoid older pleading distinctions and forms. And it is also worth noting that, despite this code, the same court nine years after Porter refused to entertain a mortgagee's suit as a third-party beneficiary to a contract for the sale of the equity of redemption on the grounds that the code did not reach such “unassignable” cases. Woodcock v. Bostic, 118 N.C. 822, 24 SE 362 (1896).

103. Bank of Mo. v. Benoist, 10 Mo. 520 (1847). Cf. Robbins v. Ayres, 10 Mo. 538 (1847), where English treatises and cases were reveiwed in an effort to discover that one might sue as a third-party beneficiary on a simple (parol) contract, but not on a covenant (sealed contract or deed inter panes).

104. Belt v. McLaughlin, to the use of Cotton, 12 Mo. 433 (1849); Corl v. Riggs, 12 Mo. 431 (1849); Jones v. Miller, 12 Mo. 408 (1849).

105. Friedman, A History, 394.

106. Ibid., 393-95, 397-99, 404. See also Mayes, Daniel, “An Address to the Students of Law in Transylvania University,” Lexington, Ky, 1834, in The Gladsome Light of Jurisprudence, ed. Hoeflich, Michael (Westport, Ct., 1988), 152–54Google Scholar.

107. Manny v. Frazier's Adm., 27 Mo. 419 (1858).

108. Page v. Becker, 31 Mo. 466 (1862).

109. Infra note 151.

110. Owings v. Owings, 1 H&D (Md.) 485 (1827) (a gift-beneficiary “trust” case); Eichelberger v. Murdock, 10 Md. 373 (1857) (a creditor-beneficiary case); Kalkman v. McElderry, 16 Md. 56 (1860); McNamee v. Withers, 37 Md. 171 (1872); Small v. Schaefer, 24 Md. 143, at 158 (1866).

111. M'Gillicuddy v. Cook, 5 Blackf. (Ind.) 179 (1838); Salmon v. Brown, 6 Blackf. (Ind.) 347 (1842); Farlow v. Kemp, 7 Blackf. (Ind.) 544 (1845); see also Britzell & Wife v. Fryberger, 2 Ind. 176 (1850).

112. Millar, Robert W., Civil Procedure of the Trial Court in Historical Perspective (New York, 1952), 54Google Scholar; Justice William Stuart in Conklin v. Smith, 7 Ind. 107, at 109 (1855).

113. Fausler v. Jones, 7 Ind. 277 (1855); Bird v. Lanius, 7 Ind. 615 (1856); cf. Allen v. Davidson, 16 Ind. 416 (1861).

114. Beals v. Beals, 20 Ind. 163 (1863); Day v. Patterson, 18 Ind. 114, at 115-16 (1862); cf. Davis v. Calloway, 30 Ind. 112, at 114 (1868); and Miller v. Billingsley, 41 Ind. 489 (1873).

115. Hind v. Holdship, 2 Watts (Pa.) 104, at 105 and 106 (1833).

116. Fischer, Sydney George, “The Administration of Equity through Common Law Forms in Pennsylvania,” in Select Essays in Anglo-American Legal History, vols. (Boston, 1908), 2: 810ffGoogle Scholar; Eastman, Frank, Courts and Lawyers of Pennsylvania (New York, 1922), 2: 411–21Google Scholar.

117. Blymire v. Boistle, 6 Watts (Pa.) 182, at 184 (1837).

118. President Judge Pearson of the Dauphin County Court of Common Pleas, quoted in Finney v. Finney, 16 Pa. 380, at 383 (1851).

119. As in Hind v. Holdship, supra note 133; Commercial Bank v. Wood, 7 W. & S. (Pa.) 89 (1844); Edmundson v. Penny, for the use of McCandless, 1 Pa. 334 (1845); Beers v. Robinson, 9 Pa. 229 (1848); Bellas v. Fagely, 19 Pa. 273 (1852); Hoff's Appeal, 24 Pa. 200 (1855); Townsend v. Long, 77 Pa. 143 (1874); Merriam v. Moore, 90 Pa. 78 (1879); and esp. Torrens v. Campbell, 74 Pa. 470 (1873).

In Edmundson v. Penny, for the use of McCandless, Chief Justice John Bannister Gibson would not permit a promisee to sue on behalf of a gift-beneficiary. Only the beneficiary of such a gift could sue, in his own name, Gibson explained. Such a rule “is founded in good sense,” both because “it avoids circuity [of action]” and because “the common law has fixed its canon against delegation of right to sue for a chose in action” (335).

120. Campbell v. Lacock, 40 Pa. 448, at 452 (1861); note that this was also one of Crompton's objections in Tweddle v. Atkinson, supra note 53, decided the same year as Campbell; Kountz v. Holthouse, 85 Pa. 235, at 237 (1877); Adams v. Kuehn, 119 Pa. 76, 13 Atl. 184, at 187 (1888); cf. Vincent v. Watson, 18 Pa. 96 (1851); Ayer's Appeal, 28 Pa. 179 (1857); Robertson & Co. v. Reed, 47 Pa. 115 (1864); cf. Stone v. Justice, 9 Phila. Rpts. 22 (1872).

121. Guthrie v. Kerr, 85 Pa. 303, at 308–9 (1877).

122. Warden v. Burnham, 8 Vt. 390 (1836).

123. Crampton v. Bollard, 10 Vt. 253 (1838). See also Town of Milton v. Story, 11 Vt. 101 (1839); Hall v. Huntoon, 17 Vt. 244 (1845); Corey v. Powers, 18 Vt. 587 (1846); and Fugure v. Mutual Society of St. Joseph, 46 Vt. 362 (1874), where Justice Redfield rejected the New York rule and noted (363) that “the course of decisions in England seems in concurrence with the uniform rule in this state.” But see Phelps Dodge & Co. v. C. B. Conant & Co., 30 Vt. 277 (1858), where the court found that the defendant's receipt of property to be converted to money for the use of a third party created a kind of trust fund, enabling the third party an equitable action in the fashion of Carnegie v. Morrison (supra note 76) and Warren v. Batchelder, 16 N. H. 580 (1845). And see Davenport, Adm. v. Northeastern Mutual Life Assoc., 47 Vt. 528 (1875), and Coleman v. Whitney, 62 Vt. 123, 20 Atl. 322 (1890) where third-party gift-beneficiaries were permitted to sue on contracts for their benefit.

What particularly impressed Redfield was the “collateral” nature of the third-party beneficiary's link to the contract, as with all contracts to indemnify the maker. I recognize that this particular case resembles closely the “incidental” beneficiary cases excluded from this study (supra note 22), but I regard it as important to include a few of the richer “leading cases” on this issue in order to clarify the process of boundary-setting and to add to the understanding of the process of judicial decision making that is the primary focus of our investigation.

124. Those other courts refusing to allow such suits were: Indiana, in Haskett v. Flint, 5 Blackf. 69 (1839); New Hampshire, in How v. How, 1 N. H. 49 (1817); New Jersey, in Smith v. Emery, 12 N. J. L. 53 (1830); Tennessee, in M'Alister v. Marberry, 4 Hump. 426 (1844); Delaware, in Walters v. Comly, 3 Har. 117 (1840); Vermont, in Tuttle v. Catlin, 1 D. Chip. 366 (1821); Kentucky, in Jenkins & Wife v. Morton, 3 T. B. Mon. 28 (1825); Pennsylvania, in Strohecker v. Grant, 16 S. & R. 237 (1827); Massachusetts, in Johnson v. Foster (Chief Justice Shaw), 53 Mass. 167 (1846); Missouri, in Robbins v. Ayers, 10 Mo. 538 (1847); Arkansas, in Hicks v. Wyatt, 23 Ark. 55 (1861); Illinois, in Moore v. House, 64 Ill. 162 (1872); Michigan, in Hicks v. McGarry, 38 Mich. 667 (1878); Maryland, in Seigman v. Hoffacker, 57 Md. 321 (1881); and Georgia, in Gunter v. Mooney, 72 Ga. 205 (1883). These opinions drew heavly on treatises like Chitty on Contracts, supra note 68, Parsons on Contracts, supra note 92, or Story's, JosephCommentaries on Equity Jurisprudence, 3d ed. (Boston, 1843), 2: 282Google Scholar, sec. 973, as well as specific English precedents for their authority, and were highly doctrinal in tone. See Justice Thomas Duncan in Strohecker v. Grant, at 240: “It is the duty of judges to preserve the forms of actions, and parties are not to be permitted to convert them by their own contrivances; innovations of this kind should be resisted. The doctrine of pleading is founded in strong sense; its excellence consists in its simplicity, in bringing some precise fact to issue.” See also Vice-Chancellor Abraham Van Fleet in Cromwell v. Currier, 27 N. J. Eq. 152, at 155 (1876): “A rule so ancient has been so generally adhered to, that it must be regarded as axiomatic and beyond the powers of the court to alter or destroy.”

Those permitting such suits were: South Carolina, in Duncan v. Moon, 23 S. C. 332 (1838); Maine, in Hinkley v. Fowler, 15 Me. 285 (1839); Alabama, in Huckabee v. May, 14 Ala. 263 (1848); Texas, in McCown v. Schrimpf, 21 Tex. 22 (1858); Wisconsin, in Kimball v. Noyes, 17 Wis. 695 (1864); New York, in Coster v. Mayor of Albany, 43 N. Y. 399 (1871); Ohio, in Emmett v. Brophy, 42 Oh. St. 82 (1884); Oregon, in Hughes v. Navigation Co., 11 Ore. 437, 5 PAC 206 (1884); and West Virginia, in Johnson v. McClung, 25 W. Va. 659 (1885). The Wisconsin and West Virginia opinions attributed the right of the third-party beneficiary to sue on a covenant to state statues authorizing such actions. Thus only seven of twenty-six high courts sanctioned such suits on their own, and the legislatives of three of these (New York, Ohio, and Wisconsin) had passed procedural code reform statues that may have led their courts to see the older covenant/contract distinction as having been abrogated, while a forth, Texas, had never had any law-equity distinctions. The Alabama opinion of Justice Edward Dargan did offer a clear utilitarian rationale (“Why should [the plaintiff] be driven into a court of equity?”), but that opinion drew a firm doctrinal dissent from the court's chief justice, Henry Collier.

125. Ross v. Milne, 12 Leigh (Va.) 204, at 225 (1841); cf. Sanders v. Filley, 12 Pick. (29 Mass.) 554 (1832). The Virginia court held to this formal distinction throughout the nineteenth century; see Jones v. Thomas, 21 Gratt. (62 Va.) 96 (1871); Stuart v. James River & Kanawha Co., 24 Gratt (65 Va.) 294 (1874); and Willard v. Worsham, 76 Va. 392 (1882).

126. Crocker v. Higgins (1829) and Steele v. Aylesworth (1846), supra note 90.

127. Justice Carpenter in Meech v. Ensign, 49 Ct. 191, at 209 (1881); cf. Chapin v. Fellowes, 36 Ct. 132 (1869).

128. Clapp v. Lawton, 31 Ct. 95 (1862); Justice Simeon Baldwin in Baxter v. Camp, 71 Ct. 242, 41 ATL 803 (1898).

129. Meech v. Ensign, 49 Ct. 191, at 205 and 208–10 (1881) (citing Vrooman v. Turner, 69 N. Y. 283 (1877); Garnesey v. Rogers, 47 N. Y. 233 (1872), Merrill v. Green, 55 N. Y. 270 (1873), Simpson v. Brown, 68 N. Y. 361 (1877), Pardee v. Treat, 82 N. Y. 393 (1880); cf. Bean v. Edge, 84 N. Y. 510 (1881), and Knickerbacher Life Ins. Co. v. Nelson, 78 N. Y. 137 (1879).

130. Blymire v. Boistle, supra note 117, at 183, and Meech v. Ensign, supra note 129, at 205; Chief Justice H. O. Beatty in Alcalda v. Morales, 3 Nev. 132 at 137 (1867); Justice Ebenezer Wells in Lehow v. Simonton, 3 Colo. 346, at 348 (1877). The similarity of language in these last two opinions is striking, which suggests doctrinal borrowing. They also defended it as “sustained by ample authority” (Alcalda, 137; Lehow, 348), citing Parsons on Contracts and case law.

131. Friedman, History of American Law, 393; Connecticut eventually did adopt a code of precedure in 1879, but it was based on the English codes of 1852 and 1854 rather than the Field Code. Millar, Robert W., Civil Procedure of the Trial Court in Historical Perspective (New York, 1952), 55Google Scholar.

132. Corbin, supra note 18 (1) at 12.

133. Justice Carpenter in Meech v. Ensign, supra note 129; cf. Blymire v. Boistle, supra note 117, at 183, and Crampton v. Ballard, supra note 123.

134. Supra note 18 (1) at 12, (2) at 1023.

135. Friedman, History of American Law; Millar Civil Procedure of the Trial Court, 52–59.

136. Mayor v. Bailey, 5 Martin O. S. (La.) 321 (1818); Mayor v. Duplessis, 5 Martin O. S. (La.) 309, at 320.

137. Martin's Reports (Old Series) became widely available in mid-century; these cases appeared in Volume 2 of the series, published in 1852 in New York City. There is also no indication in any of the surviving records in either the City of New Orleans or Louisiana Supreme Court Archives of such a release. I am grateful to Wayne Everard, archivist of the Louisiana Division of the New Orleans Public Library, for his assistance.

138. Supra note 134.

139. Hinkley v. Fowler, 15 Me. 285 (1839); Motley v. Manufacturer's Ins. Co. and Bohanan v. Pope, supra note 67.

140. Tewksbury v. Hayes, 41 Me. 123 (1856).

141. But see also the further arguments against it on grounds of injustice of Francis Wharton, 18 Fed. Rpt. 523, 526 (1883), who offers several illustrations of the problem that Crampton, J., had alluded to in Tweddle v. Atkinson (supra note 53): “It would be a monstrous propostion to say that a person was a party to the contract for the purposes of suing upon it for his own advantage, and not a party to it for the purpose of being sued.” See also the discussion of the problem that mortgagors face with the rule in mortgagee-grantee suits in Fuller, supra note 1, at 569–70; cf. Whittier, Clarke, “Contract Beneficiaries,” in Amer. Assoc. of Law Schools, Selected Readings on the Law of Contracts (New York, 1931), 693Google Scholar; and Merrill, J. H., “Contracts for the Benefit of Third Persons,” American Law Register 23 (1884): 1Google Scholar and Palmer, supra note 64, at 42n, on the “fear” of double recovery suits that English courts must have generated.

142. But see also the views of Justice Strong, appointed to the U.S. Supreme Court from Justice Sergeant's Pennslyvania Supreme Court, echoing Sergeant in National Bank v. Grand Lodge, 98 U.S. 123, at 125 (1878), infra note 178.

143. Johnson v. Collins, 14 Iowa 63 (1862); Spann v. Cochran, 63 Tex. 240 (1885); Hunter v. Wilson, Steady & Co., 21 Fla. 250 (1885): Johnson v. Knapp, 36 Iowa 616 (1873); and Kreutz v. Livingston, 15 Cal. 344 (1860). Cf. Corbett v. Waterman, 11 Iowa 86 (1860); Scott's Admin v. Gill, 19 Iowa 187 (1865); Ross v. Kennison, 38 Iowa 396 (1874); Lamb v. Tucker, 42 Iowa 118 (1875); Sweatman v. Parker, 49 Miss. 19 (1873); Lee v. Newman, 55 Miss. 364 (1877); Anthony v. Herman, 14 Jan. 494 (1875); Harrison v. Simpson, 17 Kan. 508 (1877); Floyd v. Ort, 20 Kan. 162 (1878); Alliance Mutual Ins. Co. v. Welch, 26 Kan. 632 (1881); Lehow v. Simonton, supra note 130; Green v. Morrison, 5 Colo. 18 (1879); Green v. Richardson, 4 Colo. 584 (1879); Cooper v. Foss, 15 Neb. 515, 19 NW 506 (1884); Shamp v. Meyer, 20 Neb. 223, 29 NW 379 (1886); Lews v. Covilland, et al., 21 Cal. 178, at 190 (1862) overruling McLaren v. Hutchinson, 18 Cal. 80 (1861), where the English rule had been applied; Morgan v. Overman Silver Mining Co., 37 Cal. 534(1869).

144. Brown v. Hazen, 11 Mich. 219 (1863); Pipp v. Reynolds, 20 Mich. 88 (1870); Turner v. McCarty, 22 Mich. 265 (1871); Halsed v. Francis, 31 Mich. 113 (1875); Insurance Co. v. Davenport, 37 Mich. 609 (1877); Hunt v. Strew, 39 Mich. 368 (1878); Higman v. Stewart, 38 Mich. 513 (1878); Knox v. Hayes, 41 Mich. 529, 2 NW 670 (1879); Hidden v. Chappel, 48 Mich. 527, 12 NW 687 (1882); Fay v. Sanderson, 48 Mich. 259, 12 NW 161 (1882); Edwards v. Clement, 81 Mich. 513, 45 NW 1107 (1890); Wheeler v. Stewart, 94 Mich. 445, 54 NW 172 (1892); Linneman v. Moros's Estate, 98 Mich. 178, 57 NW 103 (1893; Minnock v. Eureka F &M Ins. Co., 90 Mich. 236 (1892). But see Peer v. Kean, 14 Mich. 354 (1866), where the third party was viewed as a cestui que trust and permitted an equitable action, and Monaghan v. Agric. Fire Ins. Co., 53 Mich. 238, 18 NW 797 (1884), where children insured by their mother were viewed as having standing in the fashion of Dutton v. Pool, supra note 40. Hence Michigan's Supreme Court appears to have been willing to allow gift-beneficiaries to sue, but not the more numerous or commercially important creditor-beneficiaries.

145. McCartney v. Wyoming National Bank, 1 Wy. 386 (1877); Empire State Ins. Co. v. Collins, 54 Ga. 376 (1875); Gunter v. Mooney, 72 Ga. 205 (1883); Pfieffer v. Hunt, 75 Ga. 513 (1885); Austell v. Humphries, 99 Ga. 408, 27 SE 736 (1896). Georgia's courts did, of course, permit “third-party beneficiaries” equitable actions to compel specific performance or other equitable relief as a cestui que trust, but only “in equity,” even after their legislature's adoption in 1860 of the Field Code. See Bell v. McGrady, 32 Ga. 257 (1861); and Ford, et al., v. Finney, 35 Ga. 258 (1866); and Wilson v. 1st Presbyterian Church of Savannah, 56 Ga. 554 (1876).

146. McCartney v. Wyoming National Bank, 1 WY. 386 (1877).

147. This was Lehow v. Simonton, supra note 130.

148. See infra notes 174 and 177.

149. Supra note 107.

150. Friedman, A History, believes that Parsons on Contracts “sold more copies than any other treatise” of the nineteenth century (624).

151. Justice Warren Currier, quoting Parsons, in Meyer, et. al. v. Lowell, 44 Mo. 328, at 330–31 (1869); Flanagan v. Hutchinson, 47 Mo. 237 (1871); Justice Wash Adams in Rogers v. Gosnell, 51 Mo. 466 at 469 (1873); Rogers v. Gosnell, 58 Mo. 589 (1875).

152. Hendrick v. Lindsay, 93 U.S. 143, at 149 (1876); he cited Parsons on Contracts “and cases cited therein.”

153. National Bank v. Grand Lodge, 98 U.S. 123, at 125 (1878).

154. Thatch v. Metropole Ins. Co., 11 Fed. 29 (1882); Anderson v. Fitzgerald, 21 Fed 294 (1884); Woodland v. Newhall's Adm., 31 Fed 434 (1887); Keller v. Ashford, 133 U.S. 620 (1889); Jackson Iron Co. v. Negaunee Concentrating Co., 64 Fed. 298, 31 U.S. App. 1 (1895); American Exch. Nat. Bank v. Northern Pacific RR Co., 76 Fed. 130 (1896). Only in Sonstiby v. Keeley, 7 Fed. 447 (1880), did a federal circuit court (as it was allowed) follow the local (Minnesota) rule and allow the third-party beneficiary to sue.

155. See, for example, Justice Graves, Benjamin in Higman v. Stewart, 38 Mich. 513, at 523 (1878Google Scholar), deferring to the Massachusetts court (“courts of high authority”), and Chief Justice James Gilgillan in Jefferson v. Asch, 53 Minn. 446, 55 NW 604, at 606 (1893): “We have referred so fully to the decisions in New York and Massachusetts because in those states the question has more frequently arisen, and been more ably and thoroughly discussed, than elsewhere in this country.”

156. See Flint v. Pierce, 99 Mass. 68 (1868); Pettee v. Peppard, 120 Mass. 522 (1876); Prentice v. Brimhall, 123 Mass. 291 (1877); Morrill v. Lane, 136 Mass. 93 (1883); New England Dredging Co. v. Rockport Granite Col, et al., 149 Mass. 381, 21 NE 947 (1889); Borden v. Boardman, 157 Mass. 410, 32 NE 469 (1892).

157. This exception applied to promises to a lessee by one subletting to pay rent to the lessor; see supra note 95.

158. See Fuller, supra note 1, at 520–24, and supra note 9.

159. Holmes, O. W. Jr., The Common Law, ed. DeWolfe Howe, Mark (Boston, 1963), 5, 32Google Scholar.

160. Kent, James, Commentaries on American Law, 12th ed., 4 vols. (Boston, 1873), 2: 464Google Scholar; New England Dredging, supra note 156. See also J. C. Perkins's support for the English rule in his American edition (the sixteenth) of Chitty's, JosephTreatise on Pleading and Parties to Actions (Springfield, Mass., 1879), 5Google Scholar note n.

161. Holmes, The Common Law, 265.

162. See for example, Holmes in Hicks v. Guinness, 269 U.S. 71 (1925): “The inconveniences have been pointed out in arguments … but the conclusion to which we come seems to us to flow from fundamental theory and not to need other support.” See also his opinion in Heard v. Sturgis, 146 Mass. 545, at 548–49 (1888): “The law knows nothing of moral right unless they are also legal rights.” And in Dempsey v. Chambers, 154 Mass. 330, at 331 (1891): “We are not at liberty to refuse to carry out to its consequences any principle which we believe to have been part of the common law, simply because the grounds of policy on which it might be justified seems to us to be hard to find, and probably to have belonged to a different state of society.” Cf. Stack v. N.Y., N.H. & Hartford RR, 177 Mass. 155, at 157 (1900).

163. Justice Francis Finch in Gifford v. Corrigan, 117 N.Y. 257, 22 NE 756, at 757 (1889); cf. Garnsey v. Rogers, 47 N.Y. 233, at 240 (1872); Aetna National Bank v. Fourth National Bank, 46 N.Y. 82, at 90 (1871); Pardee v. Treat, 82 N.Y. 385, at 392 (1880); and Simpson v. Brown, 68 N.Y. 280, at 284 (1877).

164. Justice William Allen in Vrooman v. Turner, 69 N.Y. 280, at 284 (1877); Finch, Justice in Wheat v. Rice, 97 N.Y. 296, at 302 (1884Google Scholar).

165. For lower-court opinions see Coleman v. Hiler, 85 Hun 547, 33 N. Y. Sup 357 (1895); Martin v. Peet, 92 Hun 133, 36 N.Y. Sup 554 (1895); and Buchanan v. Tilden, 5 App. Div. 354, 39 N.Y. Sup. 228 (1896). But see Egan v. Thomson, 57 How. Prac. (N.Y.) 324 (1878): Knowles v. Erwin, 43 Hun (N. Y. Sup. Ct.) 150 (1887); Riordan v. 1st Presbyterian Church of Tremont, 6 Misc. Rpts. 84, 26 N.Y. Sup. 38 (1893); and Babcock v. Chase, 92 Hun 264, 36 N.Y. Sup. 879 (1895). For appellate opinions see Glen, et al. v. Hope Mutual Life Ins. Co., 56 N.Y. 379 (1874); Fischer v. Hope Mutual Life Ins. Co., 69 N.Y. 633, 26 NE 759 (1889); and Buchanan v. Tilden, 158 N.Y. 109, 52 NE 724 (1899) (overrulling the lower court's decision against the gift-beneficiary). But see the highly doctrinal dissent in Buchanan of Justice John Gray on the grounds “of the absence of the essential element” that a true liability or duty to the third party beneficiary from the promisee must exist (728).

166. See especially Todd v. Weber, supra note 165, at 190, 193, and Buchanan v. Tilden, supra note 165, at 726–27.

167. This was Justice Edward Bartlett in Buchanan v. Tilden, supra note 165, at 727, praising Justice George Danforth in Todd v. Weber.

168. Todd v. Weber, supra note 165, at 190.

169. These were Hutchins v. Miner, 46 N. Y. 456 (1871); and Thorp v. Keokuk Coal Co. of N.Y., 48 N.Y. 253 (1872).

170. Turk v. Ridge, 41 N.Y. 201 (1869); Merrill v. Green, 55 N.Y. 270 (1873); Simpson v. Brown, 68 N.Y. 361 at 362 (1877); cf. Mackintosh v. Fatman, 38 How. Prac (N.Y. Sup.) 145 (1869), and Edick v. Green, 38 Hun (N.Y. Sup.) 202 (1885).

171. Garnsey v. Rogers, 47 N.Y. 233, at 240 (1872); Vrooman v. Turner, 69 N.Y. 280, at 284 (1877); Simpson v. Brown, supra note 170; Lorillard v. Clyde & Co., 122 N.Y. 498, 25 NE 917 (1890); Pardee v. Treat, 82 N. Y. 385 (1880); Gifford v. Corrigan, supra note 163. These were the facts of the case and reasoning of the court in Mellen v. Whipple (Mass., 1854) supra note 91; and Trotter v. Hughes, 12 N.Y. 74 (1854), albeit in Trotter the claim of the third-party mortgagee to a suit against the grantee was further embarrassed by the fact that the grantee had only acknowledged the encumbrance in the bill of sale; he had not promised to pay it.

172. Kelly v. Roberts, 40 N.Y. 432 (1869); Moore v. Ryder, 65 N.Y. 438 (1875); and Wheat v. Rice, 97 N.Y. 296 (1884); cf. Aetna National Bank v. Fourth National Bank, 46 N.Y. 82 (1871).

173. Wharton's note on third-party beneficiaries to a contract in 18 Fed. Rpt. 523, at 525 (1883).

174. But it is not the only one that might be offered. Oregon, Arkansas, Nevada, Minnesota, New Jersey, and Delaware adopted the “tough” New York rule toward creditor-beneficiaries, while allowing gift-beneficiaries their suits, and the opinions were doctrinal efforts to “extract… general principle” from precedent and treatises. See Parker v. Jeffrey, 37 PAC (Ore.) 712, at 713 (1894); Baker v. Elgin, 11 Ore. 333, 8 PAC 280 (1884): Washburn v. Interstate Investment Co., 26 Ore. 436, 38 PAC 620 (1894); Thomas Mnfg. v. Prather, 65 Ark. 27, 44 SW 218 (1898); Ferris v. Carson Water Co., 16 Nev. 44 (1881); Richer v. Charter Oak Life Co., 27 Minn. 193, 6 NW 771, at 772 (1880); Greenwood v. Sheldon, 31 Minn. 254, 17 NW 478 (1883); Brown v. Stillman, 43 Minn. 126, 45 NW 2 (1890); Jefferson v. Asch, 53 Minn. 446, 44 NW 604 (1893); Union Railway Storage v. McDermott, 53 Minn. 407, 55 NW 606 (1893). But see Sanders v. Classon, 13 Minn. 379 (1868), Jordon v. White, 20 Minn. 91 (1873), Starika v. Greenwood, 28 Minn. 521, 11 NW 76 (1881), and Bell v. Mendenhall, 71 Minn. 331, 73 NW 1086 (1898), where all the proper doctrinal elements were found to be present to sanction application of the older English rule (and, once again, Parsons on Contracts served as the primary authority). Crowell v. Hospital of St. Barnabas, 27 N.J. Eq. 650 (1876), (third-party mortgagee beneficiary turned away on grounds that the promisee owed him no debt and the contract had been rescinded before his acceptance); and Merchant's Union Trust Co. v. New Phila. Graphite Co., 83 ATL (Del. Ch.) 520 (1912) (third-party mortgagee-beneficiary turned away because the promisee owed him no debt). See more generally Pomeroy, John Norton, Code Remedies, 5th ed. (Boston, 1929), sec. 77, notes 13 and 15Google Scholar.

175. Gwaltney v. Wheeler, 26 Ind. 415 (1866); Crass v. Truesdale, 28 Ind. 44 (1867); Dunlap v. McNeil, 35 Ind. 316 (1871); Haggerty v. Johnston, 48 Ind. 41 (1874); Whitesell v. Heiney, 58 Ind. 108 (1877); Rhodes, et al. v. Mathhews, et al., 67 Ind. 131 (1879); Tinkler v. Swaynie, 71 Ind. 562 (1880); Medsker v. Richardson, 72 Ind. 323 (1880); Fleming v. Easter, 60 Ind. 399 (1878); Campbell v. Patterson, 58 Ind. 66 (1877); Rodenbarger v. Bramblett, 78 Ind. 213 (1881); Carnahan v. Tousey, 93 Ind. 561 (1882); Allen v. Davidson, 16 Ind. 416 (1861); Beals v. Beat, 20 Ind. 163 (1863); Miller v. Billingsley, 43 Ind. 489 (1873); Richards v. Reeves, 45 NE (Ind.) 624 (1896).

176. Berkshire Life Ins. Co. v. Hutchings, 100 Ind. 496 (1884); and Lowe v. Turpie, 147 Ind. 652, 44 NE 25, at 30 (1896). See also Durham v. Bischof 47 Ind. 211 (1874), where the third-party creditor-beneficiary was turned away on the ground that the contract for his benefit had been rescinded before his acceptance, without reference to New York case law.

177. Urquart v. Brayton, 12 R. I. 169 (1879); Wood v. Moriarty, 15 R. I. 518, 9 NE 427 (1887); Adams v. Union R. Co., 21 R. I. 134, 42 ATL 515 (1899); and Wilbur v. Wilbur, 17 R. I. 295, 21 ATL 497 (1891).

178. In a total of a dozen cases: see the discussion on “convenience” and “inconvenience.” See also the late nineteenth-century cases of National Bank v. Grand Lodge, supra note 248; Porter v. Richmond R Co., supra note 102; Wood v. Moriarty, 15 R. I. 518, 9 NE 427 (1887), where Chief Justice Durfee found the doctrine permitting the third-party beneficiary to sue “not only just and convenient” but also based on such precedent that “we are not prepared to recede from” (430); Federal Circuit Judge William Wallace's remark in Austin v. Seligman, 18 Fed. 522 (1883) that the English rule of Tweddle v. Atkinson “has the merit of simplicity, but it is artificial instead of being reasonable”; and Rhode Island's Justice Elisha Potter's dissenting remark in Merriman v. Social Mnfgr Co., 12 R. I. 175 (1878): “To call a party for whose express, and it may be sole, benefit a contract is made a stranger to it seems to be carrying legal logic into absurdity.”

179. Western courts of the post-Civil War era tended to rely heavily on Parsons on Contracts, possibly because some of those high courts lacked complete sets of all of the published English and American reports. Thus Justice Ebenezer Wells cited Parsons on Contracts in Colorado's first impression third-party beneficiary case (Lehow v. Simonton, 3 Colo. 346 (1877) and then referred to certain cases in Massachusetts, Indiana, and California reports and “some other which are not accessible to us” but which were noted in his edition of Parsons.

180. Supra notes 3, 9, and 60; Friedman, A History, 623.

181. Buchanan v. Tilden, 5 App. Div. 354, 39 N. Y. Sup. 228, at 233 (1896); Conklin v. Smith, 1 Ind. 107 (1855); Clapp v. Lawton, 31 Ct. 95, at 104 (1862); and Washburn v. Interstate Investment Co., 26 Ore. 436, 38 PAC 620, at 622 (1894).

182. Justice Henry Dutton of Connecticut in Clapp v. Lawton, Justice William Stuart of Indiana in Conklin v. Smith.

183. Justice Thayer in Christman v. Insurance Co., 16 Ore. 283, 18 PAC 466 (1888), Justice Dewey in Salmon v. Brown, 6 Blackf. (Ind.) 349 (1842); Justice Andrew Davidson (“being a stockbroker in said railroad company”) in Bird, New and the Lawrenburgh & Upper Miss RR Co. v. Lanius, 7 Ind. 615 (1856); and Justice Berry in Van Eman v. Stanchfield, 10 Minn. 255 (1865).

184. Adams v. Union R. Co., 21 R. I. 134, 42 ATL 515 (1899).

185. This was Little v. Banks, 85 N.Y. 258 (1881); a bookseller, denied copies of the New York State Reports by the publisher, sued on the publisher's contract with the State of New York.

186. Hone v. Presque Isle Water Co., 104 Me. 217, 71 ATL 769, at 772 and 775 (1908). Here Whitehouse sounds remarkably like Chief Justice Richard W. Green of Rhode Island: “The law is progressive and expansive, adapting itself to the new relations and interests that are constantly springing up in the progress of society; but this progress must be by analogy to what is already settled.” Hodges v. N.E. Screw Co., 1 R.I. 356 (1850). This passage served as the frontispiece to the Corpus Juris, ed. Mach, William & Hale, W. B. (New York, 1917Google Scholar).

187. At 774. This was Britton v. Waterworks Co., 29 Amer. St. Rep. 856 at 863 (1892).

188. Posner, Richard, Economic Analysis of Law, 3d ed. (Boston, 1986Google Scholar).

189. At 775.

190. Linneman v. Moross' Estate, 98 Mich. 178, 57 NW 103, at 105 (1893), where a woman sought access in a common law court as the cestui que trust of a gift contract that, she claimed, created a trust for her, and the high court redirected her to a court of equity; Saunders v. Saunders, 154 Mass. 337 (1891); and Buchanan v. Tilden, 5 App. Div. 354, 39 N. Y. Sup. 228, at 233 (1896).

191. Coleman v. Whitney, 62 Vt. 123, 20 ATL 322 (1890). See also Todd v. Weber, supra note 165, Buchanan v. Tilden, supra note 190, and supra note 181. In contrast, see the “hard law” meted out mercilessly to a female ex-slave in Woodland & Wife v. Newhall's Adm., 31 Fed. 434 (1887).

192. See Williston, Contracts, 773; Fuller, Basic Contract Law, 527; and Summers, Robert S., Lon L. Fuller (Standford, 1984), 16–32Google Scholar.

193. Williston, “Contracts”; Corbin, supra note 18; Pomeroy, Code Remedies.

194. But see Elliott, William F., Commentaries on the Law of Contract (Indianapolis, 1913), 2: sec. 1405–424Google Scholar, for a review of the many exceptions to the rule as late as 1913.

195. See Chief Justice Merrick, E. T. in Wright v. Oakley, Hawkins & Co., 16 La. An. 125, at 126–27 (1861Google Scholar): “our law… expressly gives the third person for whose advantage a stipulation is made, an equitable action. C. C. 1884, 1896, C. P. 35.” See also Pecquet v. Pecquet, 17 La. An. 202 (1865), and Smith, “Third Party Beneficiaries in Louisiana,” 18.

Texas, whose court blended Spanish civil law and Anglo-American common law, never had any sharp equity-common law distinctions in pleading; hence Texas required no procedural code reform to facilitate third-party beneficiary suits. See the remarks of Justice Wheeler, Royall in McCown v. Schrimpf 21 Tex. 22 (1858Google Scholar); and Millar, Civil Procedure of the Trial Court, 56.

196. See the remark of Justice Belvard Peters in Smith v. Smith, 5 Bush (68 Ky.) 625, at 632 (1869). See also Mutter v. Sydenstricker, 11 W Va. 535 (1877); and the remark of Chief Justice Charles Stuart in Bell v. Mendenhall, 71 Minn. 331, 73 NW 1086, at 1087 (1898).

197. Woodstock v. Bostic, 118 N.C. 822, 24 SE 362 (1896). See also Parlin v. Hall, 2 N.D. 473, 52 NW 405 (1892); McDaniel v. American National Bank, 25 Mont. 456, 65 PAC 896 (1901); and Gunter v. Mooney, 72 Ga. 205 (1883).

198. See also the observation of Clark, Charles E., Handbook of the Law of Code Pleading (St. Paul, 1928), sec. 25Google Scholar on third-party beneficiaries of a contract: “It is now clear that this procedural change [permitting suits in the name of the real parties in interest] was not intended to affect the question as to what persons were given the right of action upon a contract” (1112).

199. Michigan appears to have been first, in 1871, Comp. Laws, 1871, sec. 5150, noted in Miller v. Thompson, 34 Mich. 9 (1876). Nebraska adopted a similar statue, see Shamp v. Meyer, 20 Neb. 223, 29 NW 376 (1886). Connecticut's legislature (Gen. St., 1902, Ch. 587) abrogated the rule in Meech v. Ensign, supra note 129. See also Gen. Stats, 1918, sec. 5610. Cf. Williston on Contracts, 1: 720 (sec. 383), and Glenn, Garrard, “Purchasing Subject to Mortgage,” Virginia Law Review 27 (1941): 853CrossRefGoogle Scholar and Virginia Law Review 28 (1942): 445CrossRefGoogle Scholar.

200. Iowa may have been the first; see Parker v. Jeffrey, 37 PAC 712, at 714 (1894).

201. True of Michigan, New York, Indiana, and the United States. See Note, Columbia Law Review 14 (1914): 669CrossRefGoogle Scholar, and Whittier, “Contract Beneficiaries,” 701.

202. As in Missouri, in 1865; see Meyer v. Lowell, 44 Mo. 328 (1869).

203. As in Missouri in Rogers & Peak v. Gosnell, 51 Mo. 466 (1873), Oregon in Hughes v. Navigation Co., supra note 124, West Virginia in Johnson v. McClung, supra note 124, Illinois, and New Jersey.

204. As in Pennsylvania in Act of 14 March, 1873, Public Law 46, overcoming the problem in DeBelte v. Pa. Ins. Co., 6 Whart. (Pa.) 68 (1838). Massachusetts, California, North Dakota, and South Dakota passed similar statutes. Williston “Contracts,” 1: 690, sec. 365. Other statutes protected the interests of life insurance policy beneficiaries from revocation of their status by the policyholder (to protect a wife whose husband divorced her, or a child whose widower-father had remarried and sought to switch the policy to the new wife). But these sorts of statutes simply prompted insurance companies to insert into the standard insurance policy contract a clause specifically reserving the policyowner's right to change the beneficiary. See Fuller, Basic Contract Law, 578–79, and Vance, William R., “The Beneficiary's Interest in a Life Insurance Policy,” Yale Law Journal 31 (1922): 343CrossRefGoogle Scholar. In England, where the courts only allowed an insurance policy beneficiary a suit if she or he had an “interest” in the life of the insured, a Parliamentary statue in 1867 was required to give them their day in court. Louisiana's legislature required that gift contracts such as life insurance policies be notarized. Mutual Life Ins. Co. v. Houchins 52 La. An. 1137, 27 So 657 (1899).

205. Friedman, Contract Law, 10; Horwitz, , Transformation of American Law, xvi and 160–210Google Scholar.

206. I have in mind Chief Justice Joel Parker's decision allowing workers to recover the value of their labor (in quantum meruit), less damages, off an entire contract [Britton v. Turner, 6 N. H. 481 (1834)], and Federal Circuit Judge John F. Dillon's instructions to the jury in the landmark “attractive nuisance” case, Stout v. US, 2 Dillon 294, 23 Fed. Cases 183 (1872). See Karsten, , “‘Bottomed on Justice’: A Reappraisal of Critical Legal Studies Scholarship concerning Breaches of Labor Contracts by Quitting or Firing in Britain and the U.S., 1630–1880,” American Journal of Legal History 34 (July, 1990): 213–61CrossRefGoogle Scholar: for an analysis of Parker's judicial innovation, and Karsten, “The Invention of the ‘Attractive Nuisance’ Doctrine: A Kinder, Gentler Instrumentalism from the ‘Age of Formalism,’” paper delivered at ASLH meeting, October 1990, Chicago.

207. See LaPiana, William P., “Swift v. Tyson and the Brooding Ominipresence in the Sky: An Investigation of the Ideal of Law in Antebellum America,” Suffolk Univ. Law Review 20 (1986): 771Google Scholar for a good discussion of this view of law; see also the documents in The Gladsome Light of Jurisprudence, ed. Hoeflich.

208. Lawrence Friedman is quite sensitive of this point (Contract Law, 195; History of American Law, 534; Morton Horwitz (Transformation of American Law) is not.