In Keller v. Ashford, 133 U.S. 610, 623, the court said: ". . . if one person agrees with another to be primarily liable for a debt due from that other to a third person, so that as between the parties to the agreement the first is the principal and the second the surety, the creditor of such surety is entitled, in equity, to be substituted in his place for the purpose of compelling such principal to pay the debt." See Forbes v. Thorpe, 209 Mass. 570, 582; Evans, Coleman Evans, Ltd. v. Pistorino, 245 Mass. 94, 99-100. But the conclusion reached by the trial judge cannot be upheld on the ground that the mortgagor had a right to compel the grantee to pay the mortgage debt and the mortgagee may avail herself of the right in equity by asserting this right of the mortgagor against the grantee.

We are left, therefore, with the necessity of examining the adjudicated cases in Massachusetts, in order to ascertain whether the equity courts of that commonwealth recognize on general equitable principles a right on the part of a creditor with an unliquidated claim against a debtor to proceed in equity against the debtor's grantee, when, as a consideration for the transfer of all of the debtor's assets, the successor in title has assumed and agreed to pay all the debts and liabilities of the debtor. Forbes v. Thorpe, 209 Mass. 570, 95 N.E. 955, is in point. In that case a suit in equity was brought against a defendant corporation, which had covenanted to assume and pay all the liabilities of a copartnership as part consideration for a transfer of all the partnership assets.

It follows from these equitable principles and statutes that the plaintiff can maintain this suit. This result was adumbrated in Forbes v. Thorpe, 209 Mass. 570, 582. There is nothing inconsistent with this conclusion in Coffin v. Adams, 131 Mass. 133, Robb v. Mudge, 14 Cray, 534, Marston v. Bigelow, 150 Mass. 45, and cases of like nature. The plaintiff is not precluded from recovery in this proceeding by recovering judgment against Dorman-Huxford Company. Doubtless that judgment was an election to hold that corporation rather than other defendants as its main debtor.

Appellee argues that the Bank accepted and relied on the agreement to pay it and waived rights it held against the stock of goods, and thus altered its position for the worse, Bennett being insolvent, and that the administrators having obtained and sold the goods ought not to be allowed to escape performance of the promises on the strength of which the estate in their hands was enriched. Cases like Forbes v. Thorpe, 209 Mass. 570, 95 N.E. 955, are cited. But the facts thus assumed are not yet pleaded.

Adams v. Shirk (C.C.A.) 117 F. 801. Under that law the landlord might perhaps have some equitable rights against the assignee arising from contracts between the lessee and the assignee made for his benefit, although he would have no right to sue at law in Massachusetts. Forbes v. Thorpe, 209 Mass. 570, 95 N.E. 955; Gillis v. Bonelli-Adams Co., 284 Mass. 176, 187 N.E. 535. It is quite clear that the words of the lease "all legal and sufficient instruments of assignment and acceptance as intended to be made, shall," etc., cannot be taken to require a three-party agreement at the time of the assignment so as to bring the case within the cases cited by the petitioner.

See G.L.c. 214, § 3(6); Rhoades v. Secunda, 296 Mass. 1 (1936); Forbes v. Thorpe, 209 Mass. 570 (1911); Poland v. Beal, 192 Mass. 559 (1906); Collins Mfg. Co. v. Wickwire Spencer Steel Co., 14 F.2d 871 (D. Mass. 1926). See G.L.c. 149, § 29A (enforcement of surety bond); G.L.c. 175, §§ 111, 125 (of certain insurance policies); G.L.c. 106, § 2-318 (third-party suit for breach of warranty); Johnson-Foster Co. v. D'Amore Constr. Co., 314 Mass. 416 (1943) (enforcement of explicit contractual provision for third-party recovery); Palmer Sav. Bank v. Insurance Co. of N. America, 166 Mass. 189 (1896) (suit by mortgagee against mortgagor's insurer).

See Restatement: Contracts, §§ 133, 138; Pomeroy, Equity Jurisprudence (5th ed.) §§ 1295, 1297; Corbin, Contracts, §§ 808, 810, 826, 1154; Williston, Contracts (3d ed.) §§ 347-367, and (2d ed.) §§ 1418, 1419, 1423, 1453; Note, 28 B.U.L. Rev. 465, 471-474. See also Forbes v. Thorpe, 209 Mass. 570, 581-582; Gillis v. Bonelli-Adams Co. 284 Mass. 176, 181. Cf. James Stewart Co. Inc. v. National Shawmut Bank, 291 Mass. 534, 552-553. The final decree is affirmed.

The corporation had no contractual relations with the plaintiff, and, having in mind the provisions of the Federal statute, we see no duty that it owed to the plaintiff. The case at bar is distinguishable from Forbes v. Thorpe, 209 Mass. 570, 581, 582. The plaintiff's final contention is that a voluntary liquidation of a national bank contemplates a payment in full of all depositors and other creditors, and that such liquidation to the exclusion of any creditor works a fraud upon the latter and is ineffectual to divest him of his right to a ratable distribution of the assets.

Ed.) c. 59, § 65B, inserted by St. 1938, c. 478, § 3. The right to bring proceedings in forma pauperis is the creature of legislation, and in the absence of a statute a citizen cannot, as of right, liquidate in forma pauperis the amount of his tax. Forbes v. Thorpe, 209 Mass. 570. Gallaway v. Fort Worth Bank, 186 U.S. 177. Bradford v. Southern Railway, 195 U.S. 243. A statute preventing a nonresident, whose property had been attached upon trustee process, from appearing and defending the action until he gave security to pay the judgment was held not to deprive a defendant of his property without due process of law, even though he had no resources or credit other than the property attached and was unable to furnish the security required. Ownbey v. Morgan, 256 U.S. 94.

This bill was brought under G.L. (Ter. Ed.) c. 214, § 3 (7), to reach and apply to the payment of the debt due from Secunda her alleged right to exoneration by the defendants John Borgo and Margaret M. Borgo. Forbes v. Thorpe, 209 Mass. 570, 582. Evans, Coleman Evans, Ltd. v. Pistorino, 245 Mass. 94. Bloch v. Budish, 279 Mass. 102, 105 et seq.