
    Ross v. Milne & Wife.
    April, 1841,
    Richmond.
    [37 Am. Dec. 646.]
    (Absent Stanabd, J.)
    Contracts — Indenture for Benefit of Third Person — Who May Sue. — Upon an indenture between S. and R. wherein R. covenants to pay money to M. a daughter of S. within two months after S.’s death, the representative of S. only can maintain an action against R. for ‘breach of the covenant, and M. cannot maintain either covenant for the breach or debt for the money.
    Same — Parol Contract for Benefit of Third Person— Who flay Sue. — So, upon a parol contract between S. and R. whereby R. upon a consideration moving entirely from S. promises to pay S.’s daughter M. a sum of money after S.’s death, M. cannot maintain either debt or assumpsit for the money; the representative of S. only can maintain an action at law.
    Same — Same—No Valuable Consideration — Executory Qift. — A parol contract is made between S. and R. whereby R. f or a consideration proceeding entirely from S. promises to pay S. ’s daughter M. a sum of money after S.’s death; and the daughter gives S. the mother no valuable consideration for such provision for her: Held, this is a mere executory gift of a chose in action on the part of the mother, who may at any time countermand the payment, and such gift vests no right to the money in the daughter.
    Jeofails — No Right of Action Alleged, — Upon a declaration which shews the plain tiffs have no right of action, and on the contrary that the right of action is in another, verdict is found for plaintiffs: Held, the statute of jeofails of Virginia, 1 Rev. Code, ch. 128, § 103, does not apply to the case, and cures no such defect.
    Debt, in the circuit superior court of Spotsylvania, by Milne and wife against Ross for jJSOO. sterling. The declaration was in these words :
    ‘Alexander Milne and Jane Milne his wife complain of James Ross in custody &c. of a plea, that he render to them the sum of £500. sterling money, which he owes to and unjustly detains from them. For that whereas, in the lifetime of a certain Janet Smith, the mother of the said Jane Milne, to wit, on the 7th day of September 1816, at London in G. Britain, to wit, at &c. by a certain indenture then and there made between the said Janet Smith of the one part and the said James Ross of the other part, and sealed with the seals of the said Janet and James, (which said indenture, bearing date the same day and j’ear aforesaid, is in the possession of the said James, by reason of which the plaintiffs are unable to make pro-ferí thereof,) the said James, for the consideration therein mentioned, did, among other things, agree and oblige himself to pay to the said Jane Milne, her executors &c. the said sum of £500. sterling, within two calendar months next after the decease of the said Janet; and the said A. Milne and Jane Milne his wife aver, that on the 18th day of March in the year 1832, at &c. the said Janet departed this life, whereof, afterwards, to wit, on the same day and year last aforesaid, at &c. the said James had notice; and that since the decease of the said Janet as aforesaid more than two calendar months have long ago elapsed; whereby action hath accrued to the said A. Milne and Jane Milne his wife, to demand and have of the said James the said sum of ^500. sterling above demanded. And whereas also, afterwards, in the lifetime of the said Janet Smith, to wit, on the 7th day of September 1816, at &c. in consideration that the said Janet, at the special instance and request of the said James Ross, and upon his agreement, among other things, to pay to the said Jane Milne, her executors &c. the sum of £500. sterling money within two calendar months next after the decease of the said Janet, had then and there assigned, transferred and set over, unto the said James, his *executors &c. all the share, proportion and interest of the said Janet of and in the estate and effects of a certain Colin Ross, who had theretofore died intestate, and was a brother of the said Janet, he the said James undertook, and then and there agreed, to pay to the said Jane Milne, her executors &c. the said sum of ^500. sterling money., within two-calendar months next after the decease of the said Janet; and the said A. Milne and Jane Milne his wife aver, that afterwards, to wit, on the 18th day of March in the year 1832, at &c. the said Janet departed this life ; whereof, afterwards, to wit, on the-same day and year last aforesaid, at &c. the said names had notice; and that since the decease of the said Janet more than two-calendar months have long ago elapsed; whereby action hath accrued to the said A. Milne and Jane Milne his wife to demand. and have of the said James the said sum of ¿500. sterling- money above demanded. Nevertheless, the said James, though often requested so to do, hath not as yet paid the said sum of ASOO. sterling mone3r above demanded, to the said A. Milne and Jane Milne his wife, or to either of them, but he to do this hath hitherto wholly refused, and still doth refuse; to their damage A500. sterling money. And therefore they bring suit &c. ”
    Ross put in pleas of payment and set-offs, and filed an account of his payments and set-offs. And issues were made up on the pleas.
    At the trial, Ross’s defence was entirely on the merits. The court ruled several points of law against him; and he filed two bills of exceptions to its opinions. But as the points presented by the exceptions were not decided or considered by this court, it is unnecessary to state them.
    There was a verdict and judgment for Milne and wife, for ¿£500. sterling, with S per centum per annum interest thereon from the 1st July 1832, to be levied in current money of Virginia at a rate of exchange fixed *by the court. And upon the application of Ross, this court allowed him a supersedeas to the judgment.
    The counsel for the plaintiff in error mentioned the points presented by his two bills of exceptions to the opinions of the circuit superior court given at the trial; but they said, there was a preliminary question to be considered — Whether Milne and wife could maintain this action on either of the contracts alleged in their declaration? whether any action lay but for the representative of Janet Smith, upon the deed alleged in the first count, or upon the parol contract alleged in the second count? Whereupon, the court suggested that this preliminary question ought to be first discussed and considered.
    Morson and Moncure, for the defendants in error. If either count in the declaration shew good cause of action in Milne and wife, it is enough; 1 Rev. Code, ch. 128, § 104, p. 512; Hall v. Smith & al., 3 Munf. 550. Now, 1. the second count upon the parol agreement is certainly good. Dutton & wife v. Poole, 2 Rev. 210; 1 Ventr. 332, S. C. is an authority d rectly in point; a case which was decided upon great consideration by the court of King’s Bench, l'and afterwards affirmed in the Exchequer Chamber, T. Raym." 303, and it has ever since been recognized i-n elementary treatises, Bull. N. P. 133, 4; 1 Com. Dig. Case on Assumpsit (E. a.) p. 309, and note (new edition) p. 310, and in many judicial opinions, Martin v. Hind, 2'Cowp. 437, 443, Shemerhorn v. Vanderheyden, 1 Johns. Rep. 139; Eelton v. Dickinson, 10 Mass. Rep. 287. Dutton & wife v. Poole was the case of a promise made to a father to pay money to a daughter; and it was held, that the daughter and her husband might sue for the money in their own name: the court said (Ventris’sreport) “itmight have been otherwise if the money had been to have been paid to a stranger;” but (Re-vinz’s report) “there was *such an apparent consideration of affection from the father to his children, for whom nature obliges him to provide, that the consideration and promise to the father may well extend to the children. ” And, in our case, the promise was made to a mother to pay money to her daughter. Indeed, in Shemerhorn v. Vanderheyden, the rule is laid down generally, that where one person makes a promise to another for the benefit of a third person, th^t third person may maintain an action on such promise. In Marchington v. Vernon, 1 Bos. & Pull. 101, in notis. Buller, J., states the rule in the same terms. And there are many other cases, in which a consideration moving from a stranger, no less than from a parent, has been regarded as sufficient to entitle the party to whom the money is to be paid, to sue in his own name: thus, in Martin v. Hind, before cited, Rord Mansfield regarded the rule as general; it was taken for granted in Eruhling v. Shroeder, 2 Bing. 77, 29 Eng. C. R. R. 260, and it was so regarded by the supreme court of N. York in Weston v. Barker, 12 Johns. Rep. 276. The same general rule is stated in the note on Pigott v. Thompson, 3 Bos. & Pull. 149, where the cases are collected. So the rule is stated, 1 Chitt. Plead. 5, that “when a contract, not under seal, is made with A. to pay B. a sum of money, B. may maintain an action in his own name;” for which the authorities we have cited are referred to, and some others. But it is enough for us, that where a promise is made to a parent to pay money to a child, the child may maintain an action for the money. It is true, that in the cases we have mentioned, the form of the action was assumpsit, not debt: but wherever indebi-tatus assumpsit can be maintained, debt will lie; per Ashhurst and Buller, J., in Walker v. Witter, 1 Doug. 6, and Buller, J., added, that “till Slade’s case,” (4 Co. 93, a.) “a notion prevailed, that on a simple contract for a sum certain, the action must be debt; but it was held in that case, that the plaintiff has his election either to bring assumpsit or debt.”
    *2. The first count, on the indenture, is good also; or, if it would have been bad on demurrer, it must be taken to be good after verdict. It is true, that according to the English practice, founded however on reasons merely technical, upon an indenture strictly inter partes, none but a party can maintain an action; but upon a deed poll, any person to whom money is thereby promised to be paid, may sue for it; and even upon an indenture, one who in fact seals it, though he is not formally named as a party, may sue: Platt on Covenants, p. 7. Therefore, if Milne and wife had averred in this count, that Mrs. Milne had sealed the indenture declared on, the count would have been good, according to the strictest technical rules of English practice; and under our statute of jeofails, 1 Rev. Code, ch. 128, § 103, p. 511, 512, it will, if necessary, be presumed after verdict, that it was proved or admitted at the trial, that Mrs. Milne did seal the indenture; for, by the provision of that statute, no judgment, after verdict, shall be reversed, “for omitting the averment of any matter without proving which the jury ought not to have given such verdict” — "or for any mistake or misconception of the action, or for any other defect whatsoever, in the declaration or pleading, whether of form or substance, which might have been taken advantage of by7 a demurrer, and which shall not have been so taken advantage of.” In Vaiden v. Bell, 3 Rand. 448, it was held, upon this statute, that the omission in a declaration in replevin to aver property or possession in the plaintiff, or that the defendant took the property from the plaintiff or from any body else, was cured by the verdict. Again, the technical rule of the English practice is only that covenant will not lie upon an indenture inter partes for any but a party to the indenture ; and there may be reason for confining the action of covenant (which, in its theory7, is founded on privity of contract) to the covenantees: but there is no reason why the action of debt should be *denied to any7 person to whom an indenture provides that the money shall be paid; for debt lies for all legal liabilities, and in many cases where there is no privity of contract. On general principles, debt may be maintained wherever money is to be paid, or a debt is actually due. Here, certainly, there is money to be paid, there is a debt actually due, by Ross to Milne and wife, and to no one else. If Ross had paid the money to them, and the representative of Mrs. Smith had sued for it, Ross might have pleaded the payment to Milne and wife, as an exact performance of his covenant, and it would have been a bar. And if Mrs. Smith’s representative had sued for and recovered the money, he would have been bound to pay it to Milne and wife: he would have been a naked trustee; a mere instrument through which a recovery was had for the actual beneficiaries. To allow Milne and wife to sue in their own name, prevents security of action, consults convenience and justice, and consists well with the principles of the action of debr. And unless Milne and wife can bring debt, no one can ; for if Mrs. Smith’s representative is to sue, covenant, not debt, must be the action, since the money is not to be paid to Mrs. Smith or her representative, but to Mrs. Milne.
    Patton and R. C. Stanard'for the plaintiff in error.
    The first count upon the indenture certainly7 cannot be maintained. That count alleges an indenture inter partes, in the strictest sense of the phrase; "an indenture made between Janet Smith of the one part and James Ross of the other, sealed with the seals of the said Janet and James;” a description that excludes the idea, which the ingenuity of counsel has suggested, that the deed might have been sealed by Mrs. Milne, though she was not formally named as a party in it. Now, according to all the authorities, and the very passage in Platt’s treatise on Covenants, p. 7-8, cited for the defendants in error, none but a party to such a deed can maintain *an action upon it. And suppose any thing so improbable and repugnant could be presumed, as that Mrs. Milne sealed the indenture, not being in any way a party to the deed otherwise than by sealing it; yet she could not maintain an action upon Ross’s covenant to Mrs. Smith. It is true, that if in an indenture between two parties, a third person covenants that one of the parties to the deed shall perform his contract with the other, and seals the deed, an action will lie against this third person upon his covenant; which was the case of Salter v. Kidgly, Carth. 76, cited in the note in Platt on Cov. p. 7, and there are many other cases to the same point. But it does not follow, that a third person, who, not being a party to an indenture inter partes, yet seals it, may maintain an action on the indenture, against a party to it, on his covenant to the other party, to pay money to the third person who is not a party. It is well settled, that where there is a sealed contract between parties, containing a covenant for the benefit of another person not a party, the beneficiary cannot maintain an action upon the contract, but the right to sue is confined to the parties to the deed; Storer v. Gordon & al., 3 Mau. & Selw. 308, 332; Barford adm’r v. Stuckey, 2 Brod. & Bing. 333, 6 Eng. C. E. R. 139, even though the covenants in the deed are made, in terms, directly to the beneficiary, and not to the other party to the instrument; Berkeley v. Hardy7, S Barn. & Cress. 3S5, 11 Eng. C. E. R. 251. As to the distinction taken between the action of covenant and the action of debt — that though the beneficiary may not maintain covenant, he may maintain debt; no authority for any such distinction was referred to; and there is direct authority7 against it. Barford adm’r v. Stuckey was debt on an indenture brought by the administrator of a beneficiary not a party to the indenture, to recover money thereby contracted to be paid to his intestate; and the court held, that that action could not be maintained: and *'Park, J., expressly said, "that the deed there being inter partes, it made no difference whether the action was in debt or covenant.”
    Then, is the second count, upon the pa-rol contract, good? That count alleges, that Ross, for a valuable consideration moving from Mrs. Smith, undertook and agreed to pay Mrs. Milne (a daughter of Mrs. Smith) ^500. sterling, within two months after Mrs. Smith’s death; and upon this promise Milne and wife demand this money. To sustain their right to recover upon this count, it was insisted, that in every case of a promise made to a parent, upon a consideration moving from the parent, to pay money to the child, the child may maintain an action for the money in his own name: for which proposition Dutton & wife v. Poole was mainly relied on: and to fortify the authority of that case, it was shewn, that it has been cited with approbation, as well in several judicial opinions, as in approved elementary treatises. The case is a very7 peculiar one; and if it established the general proposition for which it is now cited, it would be difficult to reconcile it with many other adjudged cases; see them collected 1 Vin. Abr. Actions of Assumpsit, Z. p. 333-7, and 1 Com. Dig. note in new edition, p. 309-312. But granting that Dutton & wife v. Poole was rightly decided, it establishes no such general proposition, and is clearly distinguishable from our case. There, the action was assumpsit; a form of action in which it is necessary to shew a consideration moving from the promisee; and accordingly, such a consideration was substantially alleged in the declaration; the allegations of which, collected from the several reports and notices of the case, 2 Rev. 210, 1 Ventr. 318, 332, T. Raym. 303, T. Jones 102, 8 Mod. 117, stated the plaintiff’s case thus: The father of Dutton’s wife, being entitled to timber trees growing in a park, and intending to cut down and sell the same to raise portions for his children, the defendant, his son and heir apparent, ^having notice of this intention and purpose, in consideration that the father, at his instance and request, would forbear cutting the trees, and leave the same to descend with the land to him, promised the father, that he would pay the daughter ¿£1000. The father accordingly forbore to cut the trees; and the action was brought by the daughter and her husband, to recover the ^1000. The defendant pleaded non assumpsit; there was a verdict for the plaintiffs, a mortion in arrest of judgment, and judgment for the plaintiffs. According to Bevinz’s report, Scroggs, C. J., said, “that there was such apparent consideration of affection from the father to his children for whom nature obliges him to provide, that the consideration and promise to the father may well extend to the children;” meaning, that the daughter might well be regarded as party to the consideration and promise: Jones and Wylde, J., who had at first hesitated, concurred in the judgment, because “the son had the benefit by having the wood, and the daughter lost her portion by this means.” It is upon the reasoning of Chief Justice Scroggs, not upon, the case itself and the judgment of the court, that the counsel for Milne and wife rely, for authority to maintain their action. The case amounts to no more than this: that the defendant having, for his own advantage, prevented the father fronj applying his timber to the purpose of raising a portion for his daughter, and so deprived her of the bounty her father intended for her, by his promise, that if the father would forego his purpose he himself would pay her ;£1000. and the daughter having lost, in consequence of the defendant’s promise, the money which, but for the promise, her father would have given her; this loss, effected by the defendant, constituted a sufficient consideration moving from her, to entitle her to demand the fulfilment of the promise. This, then, is the true reason of the judgment in Dutton & wife v. Poole; and the only view of it in which it can be reconciled with general *prin_ ciples established by numerous adjudications. Comyn, in his treatise on Contracts, part I, ch .11, 10, p. 21, considers the case as an instance in which a.promise is valid, though the consideration on which it is made proceeds in part from another; and then lays down the general principle, that the consideration on which the promise is founded should proceed from the party in whose favour it is made; for which he refers to Bourne v. Mason, 1 Ventr. 6; Crow v. Rogers, 1 Stra. 592, and Pigott v. Thompson, 3 Bos. & Pull. 147. As we understand the explanation of Dutton & wife v. Poole, given in Buller’s Ni. Pri. 134, the consideration of the defendant’s promise was the surrender to him, by the father, of the fund out of which the daughter’s portion was to be raised, which portion was a kind of debt the father owed her. So, in Buller’s view, the consideration proceeded from the daughter, and therefore she was entitled to sue upon the promise in her own name. In Barford v. Stuckey (before cited) Park, J., having remarked, that he found it “difficult to understand the reasoning of Dutton v. Poole, or to see exactly how the parties in that case stood;” Burrough, J., said he thought it w'as rightly decided: that “it was the case of a father who wished to raise a portion for his daughter; the son promised the father to pay the daughter this portion, if the father would forbear to cut down a certain quantity of timber” (out of which, it should be added, the father was about to raise the •portion); “and the question was, if this amounted to a sufficient consideration to entitle the daughter and her husband to sue: undoubtedly, it was sufficient.” Thus explained and understood, the case of Dut-ton & wife v. Poole may well be approved. But so understood, that adjudication is no authority to maintain the case of Milne and wife against Ross, as it is pleaded in the second count of their declaration. It is not there alleged, that Mrs. Smith being entitled to a share of Colin Ross’s estate, and intending to give a ^portion of ^500. to her daughter Mrs. Milne out of that fund, the defendant Ross, having notice of that intention, promised the mother, that if she would forbear to execute that purpose, and would assign the fund to him, he, in consideration of the assignment, would pay the daughter the ;£500. The allegation is, that, in consideration that Mrs. Smith, at Ross’s request and upon his agreement to pay her daughter Mrs. Milne ;£500. within two calendar months after the mother’s death, had assigned to Ross her share in Colin Ross’s estate, he undertook and promised to pay Mrs. Milne ;£500. within two calendar months &c. No present purpose of the mother to give the portion to the daugh+er out of the fund is alleged; no knowledge of such purpose, no design to prevent the execution of it, by procuring an assignment of the fund out of which it was to be accomplished, is imputed to Ross: the agreement is not alleged to have been made with, or the promise to, the mother, or to the daughter, or any body in particular; but the whole consideration is stated to have moved from the mother. It was an executory contract, on Ross’s part, made with Mrs. Smith, to pay the money to Mrs. Milne; and on Mrs. Smith’s part, it was an executory parol gift of the money to her daughter, which she might have revoked at pleasure. Not the daughter, therefore, but the representative of the mother only, is entitled to sue upon the agreement or promise. Suppose the daughter is the beneficiary, and the representative of the mother but a trustee for her, yet the legal title is in him, and he alone can maintain an action at law upon it: the daughter has, at the most, but an equitable right. From the other cases that were cited, the argument for the defendants in error can derive no support. Martin v. Hind, 2 Cowp. 437, was assumpsit brought by Martin, curate for Hind, who was rector of the parish of St. Ann’s Westminster, to recover the salary or stipend due to him: and to prove Hind’s undertaking to pay it i!'the plaintiff offered in evidence a certificate addressed by the defendant to the bishop of London, wherein he certified to the bishop, that he, Hind, did thereby appoint Martin to perform the office of curate in the church of St. Ann, and did promise to allow him a yearly sum of 50 guineas for his maintenance in the same &c. And one objection taken for the defendant was, that it appeared by this certificate, that the promise to pay the curate’s salary was made, not to the curate, but to the bishop, and therefore the curate could not maintain the action for the salary : and Lord Mansfield said, that the certificate imported no promise to or contract with the bishop, but merely information of a matter of fact; the contract was with the curate; therefore, there was no shadow of objection to his maintaining the action. Shemerhorn v. Vanderheyden, 1 John. Rep. 140, went off upon another ground; and, therefore, though this point arose, it was not necessary to examine it, and it manifestly was not examined, with any care. In Felton v. Dickinson, 10 Mass. Rep. 287, the father of the plaintiff, when he was about fourteen years old, placed him in the defendant’s service, upon an agreement that he should remain in that service till he should arrive to the age of twenty-one years; during which time the defendant promised to find him food and clothing, and at the end of the term of service, to pay him 200 dollars; the plaintiff served out his time, and brought this action to recover the 200 dollars: it was objected, that the promise, as i roved, was made to the father, not to the plaintiff. The court held that the plaintiff might maintain an action on the contract in his own name; and rightly, without doubt; for the whole service had been performed by the plaintiff, in other words, the whole consideration moved from him. Here again, the case itself is no authority to the purpose for which it was cited; and it is the general reasoning of the court in giving judgment, which is relied on. There, indeed, the court stated the *broad proposition, that “when a promise is made to one for the benefit of another, he for whose benefit it is made may bring an action for the breach of it:” and the same proposition is stated by the supreme court of N. York in Shemer-horn v. Vanderheyden, and is imputed to Duller, J., in the brief note of Marchington v. Vernon, 1 Bos. & Pull. 101. So Chitty (Plead. 5-6,) says, that “when a contract not under seal is made with A. to pay B. a sum of money, B. may sustain an action in his own name.” But the leading authority always referred to for the proposition, is the case of Dutton & wife v. Poole; which does not warrant it, but by the plainest inference establishes the reverse of it. And though there is some contrariety in the older cases, they will be found, on examination, to result in the principle, that, upon a parol contract, none but the party to it or promisee, or the person from whom the consideration moves, can maintain assumpsit, much less debt, in his own name. A stranger both to the promise and the consideration can maintain no action. Bourne v. Mason, 1 Ventr. 6; Crow v. Rogers, 1 Stra. 592; Ward v. Evans, 1 Ld. Raym. 928; Israel v. Douglass, 1 H. Blacks. 329; Weston v. Barker, 12 Johns. Rep. 276;’ Price v. Easton, 4 Barn. & Adolph. 433, 24 Eng. C. L. R. 96.
    As to the statute of jeofails, it may cure all defects in the manner of pleading a title, when it can be collected from the pleading that there is a title; but if a declaration shews that the plaintiff has no right of action, much more if it shews that the right of action is in another, the statute cannot cure such a defect in the plaintiff’s case; for that would be, not to cure defects either of form or substance in the pleadings, but to confer a right of action where none exists; which, certainly, is not the purpose or the effect of the statute.
    
      
      He had been counsel in the cause.
    
    
      
      Indenture for Benefit of Third Person — Common-Law Rule. — At common law, no action could be maintained upon an indenture or deed inter partes, by one not a party to the deed, although the covenant therein was for his benefit; the right to sue on a covenant was limited to the parties to the deed or their privies. In support of this proposition, see the principal case cited in Johnson v. McClung, 26 W. Va. 662, 663: Nutter v. Sydenstricker, 11 W. Va. 547; Willard v. Worsham, 76 Va. 397; Newberry Land Co. v. Newberry, 95 Va. 120, 27 S. E. Rep. 899; Clemmitt v. Ins. Co., 76 Va. 360; Jones v. Thomas, 21 Gratt. 101.
      Same — Statutory Rule. — But the statutes in Virginia and Vest Virginia now provide that “if a covenant or promise he made for the sole benefit of a person with whom it is not made, or with whom it is made jointly with others, such person may maintain in his own name any action thereon, which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise.” Va. Code 1887, sec. 2415; W. Va. Code. ch. 71, sec. 2, p. 679. This statute has been construed In Newberry Land Co. v. Newberry, 95 Va. 119, 27 S. E. Rep. 899; Johnson v. McClnng, 26 W. Va. 659.
      See foot-notes to Jones v. Thomas, 21 Gratt. 96, Stuart v. James River & Kanawha Co., 24 Gratt. 294. and monographic note on “Contracts” appended to Enders v. The Board of Public Worts, 1 Gratt. 364.
      Same — Same—Effect on Equity Jurisdiction. — See the principal case cited In Ralphsnyder v. Ralphsnyder, 17 W. Va. 38, to the point that equity still has jurisdiction in these cases, notwithstanding a remedy at law is given to the beneficiary under the above statute.
      It was said in Willard v. Worsham, 76 Va. 397, that In the principal case, the court expressly declined to pass upon the question, whether such a trust or interest was created for the beneficiary as would entitle her to sue in equity.
    
    
      
      Jeofails — No Cause of Action Alleged. — Where the declaration sets forth no canse of action whatever, the defect is not cured by the statute of jeofails, but the judgment will be reversed, and judgment entered in the appellate court for the defendant non obstante veredicto. The principal case is cited, in support of this proposition, in Boyles v. Overby, 11 Gratt. 202; Davis v. Com., 13 Gratt. 151; Pulliam v. Aler, 15 Gratt. 61; Rohrecht v. Marling, 29 W. Va. 774, 2 S. E. Rep. 831; Mason v. Bridge Co., 28 W. Va. 653; Holliday v. Myers, 11 W. Va. 288, 289. The principal case Is distinguished in Spengler v. Davy, 15 Gratt. 397, 398; Holliday v. Myers, 11 W. Va. 290.
      
        See, foot-notes to Boyles v. Overby, 11 Gratt. 202; Mason v. Farmers’ Bank, 12 Leigh 84. See mono-graphic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
   TUCKER, P.

The preliminary question in this case is, whether the plaintiffs can recover under either of the ^counts in this declaration? The first is upon an indenture between Janet Smith and the defendant, in which he promises to pay Mrs. Milne ,¿500. sterling. To this indenture Mrs. Milne is no party, and therefore, upon well established principles, she cannot sue upon it at law. Whether such a trust or interest is created for her benefit, as will enable her to sue in equity, it is not necessary in this case to enquire. It is sufficient that she cannot sue at law. The right to sue under an indenture inter partes is confined to the parties to it. Platt on Cov. 7, 8, 1 Chit. 4, and the cases here cited. Salter v. Kidgly, Carth. 76; Offly v. Ward, 1 Lev. 235; Gilby v. Copley, 3 Lev. 138. In Barford v. Stuckey, 2 Brod. & Bing. 333, the defendant, by indenture between himself and N. Pitts, agreed to pay him an annuity for twenty-one years, and if he died within the term, then it was agreed and promised, that he should pay the annuity to his child or children: the administrator of his only child brought debt for the annuity. Dallas, C. J., said, “It is a general principle, that the right to sue under a contract is confined to the parties to the deed. The consideration did not move from the child, but from the father, and the obligation arises out of the contract itself. It is admitted that an action might have been brought by the administrator of JST. Pitts, and if he had recovered, he would have been a trustee for the child; and if he had refused to sue, he might have been compelled by the court of equity to lend his name.” He then declares, that the suit ought to have been brought by N. Pitts’s administrator, and was improperly brought by the administrator of the daughter of K. Pi its; and so the court decided. A distinction, however, has been taken between the action of covenant and the action of debt, and it is supposed that the latter may lie, though the former will not. Por this distinction we have no authority, nor do I think it can be sustained. The right of the administrator to sue in covenant cannot be ^denied; and if the beneficiary could also sue in debt, the defendant would either be twice charged, or, as Dallas, C. J., says, the court would be called upon to stay one of the actions. And thus, by the informal proceeding of a rule, the rights of the plaintiffs in the two causes would have to be determined. Such a course cannot be commended. It is better to adhere to the distinction of jurisdictions and of the forms of action, than to encounter the confusion which would ensue from departing from them. Therefore, I am of opinion, that the count upon the indenture is naught, and that no judgment upon it can be rendered in favor of the plaintiffs.

The second count sets forth the contract as a parol agreement between Janet Smith and the defendant Ross, by which, in consideration of the transfer of her interest in Colin Ross’s estate, the defendant promised to pay the plaintiff Mrs. Milne ,£500. sterling in two months after Janet’s death. Waiving the question, whether there is not a misjoinder of action, or whether this count be in debt or assumpsit, I shall proceed to these positions: that Mrs. Milne had no rights whatever under the contract as laid; that if she had, they could not be asserted at law; or if they could be so asserted, it could not be by action 'of debt, but only by special action on the case in assumpsit.

Pirst, Mrs. Milne had no rights under this alleged parol contract. To give her any right whatever, there must either have been an executed gift, ora valuable consideration. A gift without consideration confers a right, provided it is complete by delivery; and a grant, though incomplete, will 'confer a right if there be a valuable consideration. Thus, not only does a gift to a child, accompanied bj' possession, pass the title, but if one give chattels by deed, and deliver the deed to the use of the donee, though a volunteer, the goods and chattels are immediately in the donee. Butler & Baker’s case, 3 Co. 26, b. Por the deed is an executed contract: it ^passes all title out of the grantor, even without the delivery of possession. And if, in such case, the transfer is to one person for the benefit of another, the whole title passes at once by the deed from the grantor to the grantee. Of consequence, the grantor’s rights are gone, and as the grantee gave no value, he holds as trustee for the third person, who thus becomes invested with the right by the declaration of trust in his 'favour,' even though he has paid no consideration. On the other hand, though there be no deed, yet if there be a valuable consideration, the rights of the third party may be irrevocable. Thus if A. owes £100. and delivers that sum to B. to pay over to C. his creditor, A. cannot countermand it, and C. may sue for it as money had and received for his use, Farmer v. Russell, 1 Bos. & Pul. 296 ; though this seems to have been otherwise decided on the ground that the party may have subsequently paid the debt, Turberville v. Porter, Dyer 49, a. in note. And see also Surtees v. Hubbard, 4 Esp. Rep. 203. It is, however, on this principle, that the case cited in argument of Weston v. Barker, 12 Johns. Rep. 276, must rest. That was the case of a trust, in which the grantors had conveyed certain securities for discharging certain debts, and the balance to be held subject to their order: for that balance they gave the plaintiff on order, he being a creditor of theirs, and the defendant had notice of the order. The acceptance of the trust was held equivalent to an express promise by the trustee to pay to the grant- or’s order, and the order being gi%ren for payment of a debt, and the funds being in the trustee’s hands, it was held that assump-sit would lie for it. But where there is no consideration, and the contract is by parol, nothing passes to the third person by the promise to pay to him. That promise is at all times revocable before payment. Thus if a sum of money be delivered to J. S. to the use and behoof of a woman, to be delivered to her at her day of marriage, and before the marriage *the bailor revokes it, it seems to be the better opinion, that the order was countermand-able, notwithstanding the money had passed out of the hands of the grantor, and the gift therefore seemed executed as to him. Lyte & ux. v. Penny, Dyer 49, a. The reasoning of Shelley in that case, shews the principles on which the case was decided: he said, “that gifts, though commenced, are of no force if they be not completed” — “Eor when a man makes such a sort of conditional gift of his mere will and good pleasure, and delivers the thing into indifferent hands to keep for the use of a stranger, still, before the condition is performed, the bailment is revocable. Eor if a man deliver to his servant on new year’s day a golden cup, to give as a new year’s gift to a stranger, clearly he may countermand this, notwithstanding the gift, for this was not a gift perfectly executed. And there is a difference, when a man makes a gift or bailment to give to a stranger upon a consideration or former duty” — “And the law is the same when a thing is delivered in consideration, satisfaction, or recompense of another thing; there, he cannot countermand. And so here, if the case had been, that the bailor had been to be bound by covenant, in consideration of a marriage precedent, to pay such a sum, then could he never revoke it; for this alters the property immediately; but it is otherwise of a mere gift without any cause precedent.” There is indeed no proposition more clear, than that personal property can only pass by deed, or delivery of possession; .and it is not less true, that choses in action are not assignable at all at common law, though the delivery of the documentary evidences of debt, for value received, may pass an equitable title to it. In this case, there is neither valuable consideration, nor delivery of any documentary evidence of the debt. It cannot therefore amount to a gift, or even to a promise to give. Eor there is no promise to Mrs. Milne, either from the defendant Ross or from Mrs. *Smith. It was but an order to her debtor to pay money due to her, to her daughter, which order she had a right to countermand, and of course there was no vested right in the plaintiffs v'hich they can enforce against any one. If a gift of personal chattels without deed, or delivery of possession, Is inoperative and void, the gift of a chose in action, without delivery and assignment of some documentary evidence of the debt, would seem to be even yet more clearly nugatory. For at common law even a bond could not be assigned, because it is but a chose in action. In equity, indeed, the assignment is held good, but even there, not without a valuable consideration; 1 Bac. Abr. Assignment, 249; Perkins v. Parker, 1 Mass. Rep. 117. And courts of law now permit suits in the name of the obligee for the benefit of an assignee for value. Upon these principles, it is not perceived how an oral chose in action can be assignable, so as to give the assignee, •even for value, a right to sue in his own name; and the objection is a fortiori, where there is no consideration. There is nothing of which even a symbolical delivery can be made, and therefore there can be no valid, binding and executed gift. As in this case, Ross was the debtor of Mrs. Smith, and if by the oral agreement with her, that he would pay the money to Mrs. Milne, the latter acquired a right to sue for this chose in action, without consideration, without a promise or agreement with her, and without any act amounting to a transfer of the debt, then it would seem, that the principles of the law which inhibit the assignment of choses in action are unsubstantial and deceptive. For my own part, (with Lord Kenyon, 1 East 104), I think it safest to resist the overthrow of the principle which forbids such assignment.

Fink v. Fink’s ex’or, 18 Johns. Rep. 145, is a case which involves some of these principles. Alexander Fink, in his lifetime, executed his promissory note to his son for 1000 dollars payable at sixty days ; declaring, *when he did so, that he intended to give it to him absolutely; but there was no valuable consideration : an action by his son against his executor having been brought, it was decided, that it could not be maintained. Spencer, J., said “A promise to pay money as a gift, is no more a ground of action than a promise to deliver a chattel as a gift.” — “There is no case where a personal action has been founded on an execu-tory contract, where a consideration was necessary, in which the consideration of blood, or natural love and affection, has been held to be sufficient. In such case, the consideration must be a valuable one, for the benefit of the promiser, or to the trouble, loss, or perjudice of the promisee. The note here manifested indeed an intention to give the 1000 dollars. It was, however, executory, and the promiser had a locus poenitentia:. It was an engagement to give, and not a gift.” In our case, there was not even a promise or engagement to give. There was only an oral promise by the debtor to the creditor, that he would pay the debt to the third person; and this promise the creditor had, at all times before payment, a right to release or countermand.

This case, however, has been attempted to be supported upon authority; and the case of Dutton & wife v. Poole (which may be considered as the foundation on which others rest) has been confidently relied on. It was an action on the case, and appears to have been in assumpsit. The declaration is rather more at large in sir T. Raymond’s report than elsewhere, but even there no assumpsit from the defendant to the plaintiff is laid: which, however, does not seem to have been a litigated point. The plaintiff declared, that his wife’s father being about to cut down timber to raise ,£1000. for her, the defendant his son and heir promised the father, if he would forbear, he would pay the ,£1000. He did forbear, and the son failing to pay, this suit was brought; and it was decided, that the right to sue was in her, and not in the ^father or his executors. The propriety of this judgment I am not disposed to controvert. The father had kept his timber and suffered no loss: but he had designed to provide his daughter a portion, and the son’s promise prevented. To refuse to fulfil his promise was a fraud upon the sister, and the loss to her was a sufficient consideration to sustain a special action on the case. But in the case at bar, there was no loss shewn or averred, which could constitute a consideration to support an action by the daughter. The c:ises of Dutton & wife v. Poole, therefore, is not an authority in point to that before us. Felton v. Dickinson, 10 Mass. Rep. 287, was also cited. There, a father bound his son to a trade, and the master agreed in consideration of his services to pay him a certain sum at his full age. The son served out his time, and at maturity brought and maintained the action. His services were the consideration; and as it moved from him, and the promise to his father was for him, he being a minor, it'was in effect a promise to himself. As to Shermerhorn v. Vanderheyden, 1 Johns. Rep. 139, the decision, as to the point now before us, was extrajudicial; for the case went off on another point, and instead of being decided in favour of the plaintiff, was adjudged against him; so that this point seems to have been but little considered. The case of Pigott v. Thompson, 3 Bos. & Pull. 147, contains but an obiter dictum of Eord Alvanley, in which his brethren differed from him; though I am ready to admit the correctness of his proposition, wherever the promise to pay to the third person is on valuable consideration, or where the consideration moved from that person himself, as was the case in Louther v. Kelly, 8 Mod. 115. All the other cases which have been reviewed or referred to by the bar, in which the action by the third party has been sustained, will be found, I think, to be cases in which a valuable consideration moved from him, or the money was directed to be paid over in discharge of a debt due to him. Such was the *case of Ward v. Evans, 2 Ld. Raym. 928; Israel v. Douglas, 1 H. Black. 239; Weston v. Barker, 12 Johns. Rep. 276, in which last, however, Spencer dissented in a strong-opinion. The whole of these cases depend upon these legal principles: that choses in action are not assignable; and that no executory contract has any force unless sustained by a valuable consideration. The first is a rule of law adopted for the prevention of maintenance; and though it has, in modern times, been somewhat relaxed, it is stili a ruling principle. It was early admitted, that an assignment for value was good is equity; and the assignee is now also permitted to sue at law in the name of the assignor, but he cannot sue in his own name. Nor can the assignee sue at law or in equity, unless he is an assignee for value, as has been already shewn. The second principle is universal. No execu-tory contract has any force, unless it be for value; and moreover, wherever a valuable consideration is essential to an agreement, the legal interest in the simple contract resides with the party from whom the consideration moves, notwithstanding it may enure for another’s benefit, or even is to be performed to another person. From want of attention to the true principle of the'cases, there is some apparent conflict among them, some having gone farther than 'others in encroaching upon the established rules against the assignment of choses in action. Thus, if I deliver a sum of money to B. to pay over to C. who is my creditor, the money’ may be sued for by C. as money had and received to his use. Wheatley v. Low, Cro. Jac. 668. Contra, Crifford v. Berry, 11 Mod. 241. And if I have money belonging to B. and promise to pay it for him to C. he C. may sue for it in his own name, since by the agreement the money had changed owners, and I have become C.’s agent as I was B.’s before. Surtees v. Hubbard, 4 Esp. Rep. 203. This is all clear enough: but not content with going thus far, it has been decided, *that if' I give goods of the value of £10. to B. to pay to C., C. may sue, the parties having considered and treated the goods as money. 1 Roll. Abr. 32, pl. 13. And where A. was indebted to B. and B. to C. and B. gave an order to A. to pay C. and the order was accepted by A. — C. was admitted to sue A. for the amount. This case has indeed been questioned, though I think without sufficient reason, since A.’s acceptance formed a new contract, for which the transaction furnished a sufficient consideration.

Upon the whole, therefore, I am of opinion, that Mrs. Milne had no right under this supposed contract. But if she had, I am still of opinion they could only be enforced in equity. For it is not perceived, that Mrs. Smith’s representative has no concern or interest in the matter: he represents her with whom the contract was made by Ross, and from whom the consideration moved. Accordingly, in one case where the right of the beneficiary to sue was sustained, the right of the promisee to sue was also admitted; Bell v. Chaplain, Hardr. 321. But this leads to one of two consequences; either that the recovery’ here would not be a bar to the suit of the representative of Mrs. Smith, or it would be a bar. If it would not be a bar, then the defendant would be twice charged: if it would be a bar, then the representative of the promisee would be concluded by a proceeding to which he is no party. If then Mrs. Milne has rights, it is safest that they be asserted in equity, where all the parties, can be convened; or that, at least, the suit should be brought in the name of Mrs. Smith’s administrator, that, by being a party upon the record, any controversy between him and Mrs. Milne, as to her rights, may be collaterally decided by the usual, proceedings in similar cases.

Lastly; admitting Mrs. Milne’s right to sue at law, I do not think she can maintain debt. Dutton & wife v. Poole, and all the cases founded on it, were in assump-sit. *If entitled to sue, she must sue upon the special promise only; for Ross was never her debtor. This distinction, which prevails in many cases, is strictly applicable here. Thus, debt will not lie against the acceptor or endorser of a bill of exchange (except by’ statute) but the action lies upon the special undertaking. Nor will it lie on any collateral contract, as on a promise to pay the debt of another in consideration of forbearance. Anon Hardr. 486; Bishop v. Young, 2 Bos. & Pull. 78, 83; Hard’s case, 1 Salk. 23. Nor will it lie for a wager. Bovey v. Castleman, 1 Ld. Raym. 69. In this case, it is clear, that if Ross was liable at all to Mrs. Milne, it was upon the express contract, and not as her debtor, which he never was.

It only remains to observe, that the want of title in Mrs. Milne cannot be cured even by the omnipotent act of jeofails. That act never could have been designed to enable a plaintiff to recover what by his own shewing belongs to another person. The judgment, then, in this case, should have been for the defendant, non obstante vere-dicto.

The other judges concurred. Judgment reversed, and judgment for Ross, defendant below.  