for themselves, there is an exception when one makes, in his own name, some advantage for a third person the condition or consideration of a commutative contract, or onerous donation. C. C. 1884, 1896. He, for whose benefit this advantage is stipulated, has an equitable action to enforce the stipulation, when he has signified his assent in the premises. C. P. 35.

The text is clear that the advantage must be the condition or consideration of the contract: hence it is that a penal obligation cannot be stipulated for the benefit of third persons. 6 Toullier, No. 846; Rolland de Villargues, 2 Dict. Not. No. 50; C. N. 1121.

A penal clause, being a secondary obligation having for its object the enforcement of a primary obligation, cannot be assimilated to a condition or consideration. C. C. 2113.

"The penal obligation, says C. C. 2115, has this in common with a conditional obligation, that the penalty is due only on condition that the first part of the contract be not performed. But it differs from it in this, that in penal contracts there must be always a principal obligation, independent of the penalty; while in conditional contracts, there is no obligation, unless the condition happens."

The stipulation to pay a fine of one hundred dollars for each violation of the contract, is, in the very language of the parties, a penal obligation. Its very object and purpose is to enforce the primary obligation, which each of the contracting parties assumed, to close his respective store on Sundays. It is a strained and unnatural construction to say that the contract was entered into with the view of making a donation to the plaintiffs, dependent upon the condition that any of the parties would not close their stores. This was a commutative contract with a penal clause, not a conditional donation.

It is, therefore, ordered and decreed, that the judgment of the District Court be reversed, and that the plaintiffs' demand be rejected, with costs in both courts.

LAND, J., absent, concurring.

SECTION II.

ASSIGNMENT OF CONTRACTS.

MOWSE v. EDNEY.

IN THE QUEEN'S BENCH, EASTER TERM, 1600.

[Reported in Rolle's Abridgment, 20 placitum, 12.]

IF A is indebted to B by bill and B indebted to C, and B in payment of his debt to C assigns A's bill to him, and before the day for the payment of the money A comes to C and promises him that if

he will forbear to enforce the payment of the money then he, A, will pay him; upon which C forbears. Still there is no consideration to maintain any action on this promise, because notwithstanding the assignment of the bill, still the property of the debt remains always in the assignor.

PENSON AND HIGBED'S CASE.

IN THE KING'S BENCH, TRINITY TERM, 1588.

[Reported in 4 Leonard, 99.]

IN assumpsit, the plaintiff declared that in consideration that he by his servant had delivered to the defendant two bills of debt amounting to the sum of 801. solubiles eidem querenti to be received by the defendant at Roan in Normandy, to his own use, the defendant promised to pay to the plaintiff 607., and upon this matter, judgment was given; and now a writ of error was brought and assigned for error, because it is not shewed in the declaration that the bills were sealed or that they were made to the plaintiff, and here is not any consideration, for the defendant hath not any remedy to compel the parties to pay the said debts if they refuse. Godfrey: If the money be not paid at Roan to the defendant, he shall have an action upon the case, for this is an assumpsit in law, which WRAY concessit, for it is a mutual promise and agreement: and it was argued to the contrary that here is not any different consideration, for it doth not appear that the defendant hath any recovery for to recover the money. And, 13 Eliz., it was holden, that where the plaintiff declared, in an action upon the case, that in consideration that he had delivered a bill of debt to the defendant, and hath made a letter of attorney upon it, etc., the defendant promised to pay to the plaintiff 207., and because that the plaintiff (notwithstanding that) might release the debt, or revoke the letter of attorney, and so defeat the defendant of the whole profit, etc., that the action upon the matter did not lye. Also for another cause the consideration is not sufficient, for it is illegal because maintenance, but if it was upon the consideration precedent it had been good enough. As, if I be indebted to A, and B is indebted to me, I may assign to A the debt which B oweth me. Golding: Although the consideration be but of small value, yet it is good enough. And if A, in consideration B will assure to him the manor of D, promise to pay to B 1007., although the party hath not any interest or title to it, yet it is good, and also though the consideration be executory, yet it is valuable; for if the money be not paid at Roan, the defendant shall have an action upon the case against the plaintiff. It was also objected that upon the declaration it doth not appear that the defendant, if the two bills be not paid, may have an action upon

the case against the plaintiff, for there is not any express assumpsit, on the plaintiff's part, that the monies due by the bills to the plaintiff shall be paid to the defendant; for if it had been so, then it had 'been good, for then there had been a reciprocal promise which is not here, nor can be collected by any words in the declaration. Cook: It doth not appear upon the declaration by whom nor to whom the money due by the two bills shall be paid, for it may be that they are due to the defendant, and then the delivery of the two bills is not any consideration. Quod CLENCH and GAWDY, concesserunt., The case was adjourned.

ALLEN'S CASE, 1584.

[Reported in Owen, 113.]

A scire facias issued out in the name of the Queen to shew cause why execution of a debt which is come to the Queen by the attainder of J. S. should not be had. The defendant pleaded that the Queen had granted over this debt by the name of a debt which came to her by the attainder of J. S. and all actions and demands, etc., upon which the plaintiff demurred. And the question was, if the patentee might sue for this in the name of the Queen, without speciall words. And two precedents were cited that he may, 1 Pasch., 30 Eliz. rot. 191, in the Exchequer, where Greene, to whom a debt was due, was attainted, and the Queen granted over this debt, and all actions and demands, and a scire facias was sued for him in the name of the Queen, also in the 32 Eliz. rot. 219.

Mabb of London was indebted by bond, and the debt came to the Queen by the attainder, and she granted it to Bones, and all actions and demands, and a scire facias was issued out in the name of the Queen. And the principal case was adjourned. But the patentee had express words to sue in the name of the Queen, although it was not so pleaded.1

1 “Where a bond is assigned over with a letter of attorney therein to sue, and a covenant not to revoke, but that the money shall come to the use of the assignee, although the obligee be dead, yet the court will not stay proceedings in a suit upon the bond in the obligee's administrator's name, though prosecuted without his consent; for that those assignments to receive the money to the assignee's own use, with covenants not to revoke, and also with a letter of attorney in them, although they do not vest an interest, yet have so far prevailed in all courts, that the grantee hath such an interest that he may sue in the name of the party, his executors or administrators." Lilly's Practical Register, 48 (1710).

HARVEY v. BATEMAN, 1596.

[Reported in Noy, 52.]

Ir a man assign an obligation to another for a precedent debt due by him to the assignee, there, that is not maintenance; but if he assign it for a consideration then given by way of contract, that is maintenance.1

BACKWELL v. LITCOTT.

IN THE KING'S BENCH, HILARY TERM, 1669.

[Reported in 2 Keble, 331.]

NOTA, On motion of Jones to stay a trial of bankrupsie of one Colonell, it was said, that if J. be obliged to J. S. and he before bankrupsie assign the bond, this is liable to after-bankrupsie of J. S. being onely suable in his name, per KEELING and TWISDEN.

FASHION v. ATWOOD.

IN CHANCERY, JULY 19, 1680.

[Reported in 2 Cases in Chancery, 36.]

PEARSON, living in London, was agent and factor for Atwood, now deceased, to sell Norwich stuffs in London, which Atwood sent him from Norwich: and in the management of this trade, Atwood charged Pearson with bills of exchange; and it so fell out that Pearson had sold in Atwood's name divers clothes for money, payable at future days; and doubting he had not goods in his hands to make good what he had undertaken by accepting Atwood's bills, informs Atwood of it, and Atwood agrees, that Pearson secure himself out of what effects, etc., he had. At this time Atwood was indebted to Eborne and others by bond; and Pearson was likewise indebted to others on his own account; Pearson by word assigns to his creditors the debts which were due to Atwood; Atwood and Pearson both die: the administrators of Pearson, and the assignees of the debts due to Atwood, but assigned by Pearson to his creditors, sue the executrix of Atwood for to have the benefit of the debts due to Atwood for his goods sold by Pearson but assigned by Pearson to his own creditors.

1 See for further early authorities on the assignment of choses in action, 3 Harv. L. Rev. 336, by Professor Ames.

The question was, whether the assignees of the debts by parol made by Pearson and the parol agreement by Atwood, that the goods and debts which Pearson had and contracted for would be his security for his undertaking for Atwood, would prevail against the creditors of Atwood, especially such creditors of Atwood as had bonds; for the persons who had bought Atwood's goods of Pearson did know that the goods were Atwood's and not Pearson's, and entered in Pearson's books as debts due to Atwood, not to Pearson; and thereupon we of counsel, with the executor of Atwood and the creditor of Atwood by bond, insisted:

1st. That the goods were sold as Atwood's goods, and the buyers entered in Pearson's books as a debt to Atwood, Pearson had no remedy on the contract; but Atwood was solely owner of the debt.

2d. That the debt being a thing in action, is not transferable by law; so as notwithstanding the agreement of Atwood, he still in law remained creditor; and this is a case between actors and transactors in England, not of merchants, who by law-merchant may assign debts.

3d. That though in equity Pearson might retain, or be entitled in equity to the debt against Atwood himself; yet now the case is changed by the death of Atwood, for now the creditors of Atwood by bond are in a better case than Pearson, who had no title but by parol; and if Pearson would sue the executrix of Atwood, she could not pay him; but if she did, she would commit a devastavit, and break her oath as executrix, and the assignees of Pearson could be in no better case than Pearson and his executors were.

4th. The creditors of Atwood by bond had a good title in law, to be satisfied out of his estate and debts, and they had done nothing to prejudice their title: and the case is not the same, for the goods remaining unsold as for debts.

The LORD CHANCELLOR. By the agreement Pearson had a good title in equity to the debts, which in equity are become his, and are no longer Atwood's; and therefore decreed for the creditors of Pearson.1

Methinks there was another equity for Pearson, but was not mentioned or insisted on, viz.; that in case of merchant and factor, the merchant would not have account from the factor; but if the factor were out more than could be demanded from his factor (as in this case it happened), the merchant would first make even.

1 See also s. c. 2 Ch. Cas. 6. Compare Mitchell v. Edes, 2 Vern. 391.