23 F. Cas. 474 | U.S. Circuit Court for the District of Southern New York | 1852
The practice of the state courts has been changed by a recent act of the legislature, so that suits must now be brought in the name of the real party in. interest. Laws N. Y. 1849, c. 438, 5 111. Prior to that statute, the rule of proceeding in that respect was founded upon the practice of the king’s bench in England, and required actions to be brought in the name of the party, in whom the legal interest was vested. 1 Dunl. Prac. 36; Grah. Prac. 59; 1 Chit. Pl. 16, 17; 1 Tidd, Prac. 7. The United States courts follow the same rule, except where the assignee is authorized to sue in his own name by the custom of merchants or by statute. Winchester v. Hackley, 2 Cranch [6 U. S.] 342.
The rules of the United States supreme court adopt for the circuit courts the practice of the English king’s bench, leaving to those courts the power to regulate the subject at their discretion. Rule 7, Sup. Ct. Aug. 1791; Acts Sept. 29, 1789. and May 8, 1792 (1 Stat. 93, 275). The standing rules of this court adopt the practice and modes of proceeding in force in the supreme court of the state of New York in 1838, in cases not regulated by express rule of the circuit or district court. Cir. Ct. Rule 102; Dist. Ct. Rule 240.
Under this state of the law governing this court in common law cases, the assignee of a contract has no capacity to sue upon it in his own name, unless it be negotiable in its nature. The action must be brought in the name of the person with whom the contract was made, or by his legal representatives in case of his decease.
In these causes, there are surviving members of the copartnerships with which the debts were contracted. The right of action has devolved upon the survivors, and suits for the debts can be maintained only in their names. The change made by the New York Code of Procedure, in respect to the competency of parties to sue in their own names, when they are the ones having the real interest in the matter in controversy,
The proceedings in this court, after the transfer of the causes, must be the same as if the suits had been originally commenced here, and. accordingly, the declarations filed here must be in the names of the respective surviving partners, and must conform in structure to our modes of pleading. The plaintiffs are entitled to have orders entered for the continuance of the causes in ■such names, without prejudice to the attachments levied in the court below in the causes as there instituted and entitled.
