11 Johns. 488 | N.Y. Sup. Ct. | 1814
delivered the opinion of the court. The question which arises in this case is, whether the present action can be carried on in the name of Peter Raymond, he, at present, having no interest in the claim or demand for which the su¡t is brought. No objection, upon the trial, appears to have been made to the admission in evidence of the discharge of the plaintiff, under the insolvent law in Idem-Jersey, in the year 1810, and the assignment of his property to Abraham Allen. If the present cause of action passed under that assignment, the suit, when prosecuted in this state, is properly brought in the name of the insolvent. The foreign assignee would not be allowed to prosecute him in his own name, (2 Johns. Rep. 344.) though the court will recognise and protect the right of the assignee. Nor can the discharge of the plaintiff under the insolvent law of this state affect the suit. It is a settled rule, in England, that when an action is commenced in the name of the bankrupt, before his act of bankruptcy, it does not abate, but the assignee may proceed in the name of the bankrupt. (1 Chitty’s Plead. 14. 3 Term Rep. 438.) The same reason exists for applying the rule to cases arising under our insolvent law, and the suit will be continued for the benefit of the assignee.
Admitting Childs to have become equitably entitled to the benefit of this suit, before action commenced, it cannot defeat the action. There was no such assignment or transfer made, as to enable him to maintain a suit in his own name. It is not pi etended by the defendant, that he has paid or satisfied the demand; and whoever may be entitled to the avails of the suit.
Whether the money is to be recovered for the benefit of Childs, or the assignee in New-Jersey, or the assignee here, is Immaterial to the defendant. He has no concern with that question, according to the doctrine of this court in the case of Alsop v. Caines. (10 Johns. Rep. 400.) Judgment must accordingly be rendered for the plaintiff, upon the verdict as it stands.,
Judgment for the plaintiff