Gray v. Turner ex rel. Johnson , 7 Ala. 30 ( 1844 )

GOLDTH WAITE, J.

— Although the individual for whose use a suit is instituted is, to some extent, regarded by our statutes as the actual plaintiff, yet we do not think he is so for every purpose. In the case of Brown vs. Foster, 4 Ala. Rep. 2S2, after referring to the statutes which bear upon this practice o-f suing for the use of another, we say that we are not aware of any decisions here or elsewhere, which gives such a suit any other effect against the defendant than to exclude evidence of admissions made by the nominal plaintiff pending the suit. On principle this admission of interest in another seems to stand on the same footing as any other, except that it affords evidence that the defendant is advised of the transfer of the interest in the suit. The County Court seems to have proceeded upon the ground that the beneficial interest in the suit was actually transferred to the' person for whose use it was brought; but conceding this to be the effect, it will not follow that his personal representatives, in the event of his death, must be made parties before it can properly proceed. It is insisted that this consequence results from the statute which allows costs to be given against the person for whose use the suit is brought. [Clay’s Digest, 366, § 22.] This does not however, make it obligatory upon the defendant so to enter his judgment, but only permits him to do so if he deems it expedient. The previous statute which allows the suit to proceed, notwithstanding the death of the nominal plaintiff, [ib. 313, § 3,] is of the same nature, and was intended to give a right which did not previously exist. The object in both enactments seem to be, to relieve this convenient practice from the difficulties which existed, growing out of the circumstance, that the legal and beneficial interests is disjoined. In the present condition of this suit the defendant cannot be debarred from any right which he might have, if the beneficial plaintiff was yet alive, except that the election is taken away, to have costs rendered against his personal representatives, in the event of gaining the suit.

Judgment affirmed.