Field v. Maghee

The Chancellor.

The defendant’s application is founded upon the supposition (hat there had been an assignment of the complainant’s judgment, to the Kelloggs and Osborn, and that the suit in this court was brought in the name of Field, as a nominal complainant merely, for their benefit. If such had been the fact, it would of itself have been a perfect defence to the suit, as the complainants in this court must be the real parties in interest, where a chose in action has been absolutely assigned. That defence was set up in the answer of the defendant, but no proof was introduced to substantiate the fact, although this allegation in the answer was put in issue by the replication. For the purposes of this suit, therefore, it is settled that Field was the legal and equitable owner of the'judgment for the satisfaction of which the bill was filed. Although the Kelloggs and Osborn had an equitable lien upon the monies which might be recovered in the suit, for the payment of their debt, unless Field should discharge that debt in some other manner, the nominal plaintiff was in fact the real party in interest as complainant, and this suit was properly brought by him in his own name. The Kelloggs and Osborn, therefore, were neither the nominal nor the real complainants in this court. And the court has not jurisdiction over them, upon a summary application, to compel them to refund the money received from the complainant’s solicitor, or to pay the costs of the appeal in the court for the correction of errors. It is not shown that Field, or his sureties in the appeal bond, are insolvent. The defendant, therefore, has a perfect remedy by an execution against Field, or by a suit upon the bond, to obtain satisfaction for the costs of the appeal. And if the Kelloggs and Osborn are liable to refund the money received under the original decree, it can be recovered by the defendant in an action for money had and received to her use. If the decision in Lyman v. Edwards, (2 Day's Rep. 153,) was correct, they probably are not liable at all, and her only remedy is against Field, upon the decree *541 of reversal. I am, however, strongly inclined to doubt the correctness of that "decision ; but as the question is not now properly before me, I do not wish to be considered as having formed a definitive opinion on this point.

The motion must be denied, but it is denied without costs.