Majority
p. 290*Butterworth against Stagg.
Headnote
Where a person brought a suit in the name of another, without his privity or consent, it was held to be a contempt of the court, and the nominal plaintiff being nonsuited, an attachment was granted against the person who brought the suit, for the costs.This was an action of assumpsit, on a promissory note, brought by Richard M. Wood hull, in the name of Butter-
p. 291now moved for a rule on Woodhull, to show cause why an attachment should not issue against him for the costs, on the ground of a contempt of the process of the court.
worth, the present plaintiff. It appeared that Butterworth never was either the payee or holder of the note, nor in any way interested therein ; and that Woodhull never had any authority to bring the suit in his name, and that the plaintiff knew nothing of the suit.
The plaintiff was nonsuited at the last circuit.
Baldwin
This is evidently an abuse of the process of the court. It is a contempt to bring a fictitious suit, or to use the name of another, without his privity or consent. If we do not interfere, the nominal plaintiff may be materially injured ; and when it is in our power to afford him relief, in this summary mode, as for a contempt, we ought to do it, and reach the real person who has perverted the process of the court. We therefore grant the rule. (Coxe v. Phillips, Cas. temp. Hardw. 237. 4 Bl. Com. 285.)
Rule granted. ([1] )
a a (a) See 2 Revised Statutes of New York, 534, § 1. Graham’s Practice, 2d ed. 691.