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Page:Harvard Law Review Volume 1.djvu/239

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d. Money Had and Received. — This is now generally admitted to be in the nature of an equitable action, so that any party may sue another for money in his possession to which said party, in view of all the circumstances of the case, is equitably (ex equo et bono) entitled.[1]

e. Trusts. — Where, under an agreement, assets have come into the promisor’s hands or control, in trust, express or implied, to pay the plaintiff’s claim, the payment can be enforced by the plaintiff; that is, the trustee can be compelled to execute the trust.[2]

f. Nearness of Relationship. — These cases are made to rest upon the ground that the person obtaining the promise, and from whom the consideration moves, intends it as a gift to the one in whose favor the stipulation reads. They seem to proceed upon some such theory as that if the promise be not for the benefit of the plaintiff it is not for that of any one, and that, as a question of policy, the one person interested in the performance of an agreement should be permitted to enforce it. It comes very near to being an exception to prove the rule.[3]

g. Privity of Estate. — Where the lessee assigns the lease to the defendant upon his agreement to pay the stipulated rent to the lessor, the defendant is liable to the lessor on this, as indeed on all covenants that run with the land. And yet even here the limitation is made that such liability continues only so long as the defendant remains the legal assignee, making it appear the more clearly that the liability arises from the privity of estate, and not from any privity of contract.[4]

It must not be supposed that the Harvard Law School Alumni have been so faithless to the tradition of their Alma Mater as to supinely acquiesce in the legal monstrosity born of the dictum in Lawrence v. Fox. In a recent case, in which a debtor had absolutely transferred all his property to the defendant, one of his creditors, upon the defendant’s promise to pay all the debts, we succeeded in sustaining a demurrer to the complaint of one of those creditors. Judge Wallace threw himself heroically into the breach in Austin v. Seligman, 18 Fed. Rep. 519. But, shortly after, the State Courts expressly refused to follow him in a substantially similar case, and our hearts were again made to yearn for the flesh-


  1. Bull v. Boughton, 2 Denio, 21.
  2. Garnsey v. Rogers, supra.
  3. See King v. Whitely, 10 Paige, 465; Knowles v. Erwin, supra.
  4. See Walton v. Crosby, 14 Wend. 64; Mellen v. Whipple, 1 Gray, 317.