Canby v. Ridgway
| Decision Date | 31 December 1808 |
| Citation | 1 Binn. 496 |
| Parties | CANBY v. RIDGWAY. |
| Court | Pennsylvania Supreme Court |
If a suit has been carried on for the use of an assignee, the nominal plain tiff being insolvent, the court will permit the defendant after verdict to suggest upon the docket the name of the assignee, and will rule him to pay the costs.
ASHORT time after the commencement of this action, Canby, while in prison for debt, assigned, inter alia, his claim against the defendant to a certain Thomas Shaw, and then took the benefit of the insolvent laws. The action was afterwards carried on for the use of Shaw, who instructed counsel, and assisted at the trial, when a verdict passed for the defendant.
Upon these facts Hallowell, for the defendant, obtained a rule upon Shaw to shew cause why he should not pay the costs of suit.
Rawle, upon shewing cause, objected that as the name of Shaw did not appear upon the record, the court could not compel him to pay the costs. The defendant might before trial have suggested the name of Shaw as the real plaintiff, or have obtained a rule for security for costs upon the ground of Canby's insolvency; but as he had neglected to do either, he was not now to be assisted by the court.
Hallowell replied, that a rule for security was out of the question, as Canby lived within the jurisdiction of the court; and that it was not too late to make the suggestion now, since the facts shewed that Shaw had been all along the real plaintiff in interest.
It is agreed that this suit was carried on in the name of the plaintiff for the use of Thomas Shaw, who obtained an assignment from the plaintiff shortly before he was discharged by the insolvent act. The court are of opinion that under these circumstances, Shaw may be considered as the substantial plaintiff, although his name does not appear on the record. The defendant might have pleaded that the action was for his use, and made a set-off of a debt due from him. Having used the process of the court for his exclusive benefit, it is reasonable that he should be answerable for the costs. The rule is therefore to be made absolute; but it must be entered on the record, at the suggestion of the defendant, that the suit was for the use of Shaw.
Rule absolute.
To continue reading
Request your trial
-
Brothers v. Goodman
... ... rights the use-plaintiff might have had to proceed on the ... notes, the action could not be assigned. In Canby v ... Ridgway, 1 Binn. 496, the claim was assigned after suit ... was brought. The court, on a showing that the assignee had in ... fact ... ...
-
Hallstrom Development Co. v. Lee
...for costs. The substantive right embodied in the act of April 23, 1829, and extant in case law both before that date [Canby v. Ridgway, 1 Binn. 496 (1808), Steel v. Phoenix Insurance Co., 3 Binn. 312 (1811) ], and since [Neal v. Buffalo R. & P. Ry. Co., 103 Pa.Super. 218, 158 A. 305 (1931) ......
-
Hallstrom Development Co. v. Lee
...judgment for costs. The substantive right embodied in the act of April 23, 1829, and extant in case law both before that date [Canby v. Ridgway, 1 Binn. 496 (1808), Steel v. Phoenix Insurance Co., 3 Binn. 312 (1811) ], and since [Neal v. Buffalo R. & P. Ry. Co., 103 Pa.Super. 218, 158 A. 30......
-
Levering v. Phillips
...actual assignment of it; Gratz v. Farmers' Bank, 5 Watts, 99; Fleming v. Beaver, 2 Rawle, 132; Erb's Appeal, 2 Penna. Rep. 298; Canby v. Ridgway, 1 Binn. 496; Montgomery v. Cook, 6 Watts, 238; Reigart v. Ellmaker, 6 Serg. & Rawle, The expression of regret as to the rule of law was erroneous......