#### *Pates v. St. Clair.

April Term, 1854,

Richmond.

1. Forthcoming Bonds-Original Judgment Invalid Effect.*—An award of execution on a forfeited forthcoming bond cannot success fully be obi ected to on account of the invalidity of the original judgment, unless such judgment is null and void.

2. Costs-Liability of Person for Whose Benefit Suit-Brought.†—It was not improper, even before the *26act of 1849, Code, p. 706, § 9, to render judgment for costs in favor of the defendant against a person for whose benefit a suit was brought, when the' defendant succeeded in the case.

3. Judgments—Construction of.‡—In a suit brought in the name of one person for the benefit of another, a judgment stating that the parties appeared by their attorneys and by consent the suit was dismissed and judgment for defendant’s costs against the person for whose benefit the suit was brought, it must be held that the consent is the consent of the latter, and that the judgment is proper.

At the April term 1848 of the Circuit court of Bedford county, in an action on the case then depending therein in the name of Demarcus Foutz, who sues for the benefit of John D. Pate plaintiff, against Wingfield J. St. Clair defendant, a judgment was rendered in the terms following, viz: This day came the parties, by their attorneys, and by their consent, it is considered by the court that this suit be dismissed; and that the defendant recover against the said John D. Pate, for whose benefit this suit is brought, his cost by him about his defence of this suit expended. On this judgment an execution issued against the goods of Pate; and he executed a forthcoming bond with William H. Pate as his surety: And the bond was forfeited. St. Clair gave a notice to the Pates that he would move for award of execution upon the bond; and when the motion was made, John D. Pate moved the court to quash the bond, upon the ground that the original judgment was null and void. The court overruled *the motion, and awarded execution upon the bond: And thereupon the Pates applied to this court for a supersedeas, which was awarded.

Grattan, for the appellants.

Cabell, for the appellee.

*

Forthcoming Bonds.—See monographic *note*on “Statutory Bonds” appended to Goolsby v. Strother. 21 Gratt. 107.

Judgments— Collateral Impeachment. — The judg rnent of a court possessing competent jurisdiction in the proceeding before it and oyer the person against whom it is rendered, is binding and conclusive ; and however irregular or erroneous it may be. yet so long as it remains unreversed, it. cannot be drawn in question in a collateral proceeding; nor can any allegation be made against its validity. This proposition, laid down in the principal case by Lim, J„ at the beginning of his opinion, seems well establish ed in "Virginia. See *foot-note*to Andrews v. Avory. 14 Gratt. 229. and *foot-notes*there referred to.

See generally, monographic *note*on “.Judgments.'

†

Costs—Liability of Person for Whose Benefit Suit Brought.— See monographic *note*on “Costs” appended to Jones v. Tatum, 19 Gratt. 720.

The principal case is cited in Wartman v. Yost. 22 Gratt. *606.*as authority for the proposition that the *26Virginia courts look to the real, and not the nominal parties to a suit.

In Davis v. Noll, 38 W. Va. 70, 17 S. E. Rep. 792, it was said: “No man can give away negotiable securities, to the detriment of existing creditors, any more than he can give away his horse or house. In such cases the law, avoiding the illegal transfer, treats the fraudulent holder as the agent or trustee secretly suing for the benefit of his principal, and allows all just offsets against such principal. 2 Daniel, Neg. Inst. p. 451; *Pates v. St. Clair, 11 Gratt. 24;*Smith v. Lawson, 18 W. Va. 240.”

‡

Judgments.—See monographic *note*on “Judgments.”

LEE, J.

The judgment of a court possessing competent jurisdiction in the proceeding before it and over the- person against whom it is rendered, is binding and conclusive; and however irregular or erroneous it may be, yet so long as it remains unreversed, it cannot be drawn in question in a collateral proceeding; nor can any allegation be made against its validity. Horsy v. Daniel, 2 Levinz R. 161; Hayward v. Ribbans, 4 East’s R. 311; Prince v. Nicholson, 1 Marsh. R. 280; 1 Chit. Pl. 100, 320. So that the only ground on which the plaintiffs in error, in any view, can be permitted to contest the validity of the original judgment in this proceeding is, that it was ipso facto void, and furnished no foundation for the execution upon which the forthcoming bond given by them was taken. But surely, this cannot be affirmed of a judgment for the defendant’s 'costs against a party for whose benefit an action is brought in the name of another, and so expressed to be upon the record. Nor do I think the judgment in this case should be held to be irregular or erroneous. Courts of law will for many purposes take notice of the person for whose benefit a suit is brought, though in the name of another. Thus they will not permit the nominal plaintiff to dismiss the suit or release the action. Per Judge Green, Garland v. Richeson, 4 Rand. 266, 268; 1 Tuck. Comm. 347. See also opinion of Judge Buller in Masters v. Miller, 4 T. R. 320, 339. So a receipt given by the nominal plaintiff may be avoided by proof that it was given after the assignment. Henderson v. Wild, 2 Camp. R. 561. And admissions made by him after assignment will not be admitted *in support of demands set up against the claim by way of setoff. Frear v. Evertson, 20 John. R. 142. So though the nominal plaintiff have become bankrupt, the action may be maintained in his name. Winch v. Keeley, 1 T. R. 619. And where a bond was given, payable to the nominal plaintiff, but which was in fact for the use and benefit of another, a claim against that other was allowed by way of setoff. Bottomley v. Brooke, cited 1 T. R. 621. And it seems that it makes no difference that the party was not originally interested in the claim, as in the case last cited: for whether he was merely a trustee originally, or became so by a subsequent assignment of the claim, the court equally takes notice of the rights and relations of the parties. Winch v. Keeley, above cited. So in an action for a balance due on account in the name of the original creditor, for the benefit of a third party to whom it had been assigned with the defendant’s consent, the defendant was allowed to offset claims he held against the assignee. Winchester v. Hackley, 2 Cranch R. 342.

Where a party, then, brings a suit for his own benefit, though in the name of another, and afterwards abandons his action, no reason is perceived why- the court might not (even prior to the Code of 1849) properly render a judgment for the defendant’s costs directly against him, thus noticing him for the purpose of holding him to a just responsibility, as well as for the purpose of protecting him against the acts or admissions of the nominal plaintiff, or any collusion between him and the defendant. Indeed we see that where a suit has been brought in a fictitious name, or in the name of a person without his privity and consent, or of a deceased person, the court will interfere in a summary way’, and *27will hold the party by whom the suit was prompted, or even the attorney in the case, responsible for costs. Gynn v. Kirby, 1 Stra. R. 402; The People v. Bradt, 7 John. R. 539; Ketcham v. *Clark, 4 John. R. 484; Howard v. Rawson, 2 Leigh 733, and authorities there cited.

By the Code of 1849 (p. 706, § 9), it is expressly provided that where there shall be judgment for the defendant’s costs in a suit brought in the name of one person for the benefit of another, such judgment shall be against that other. And in the case of Devers v. Ross, 10 Gratt. 252, this court, on reversing the judgment of the Circuit court, rendered the judgment for costs against Rlowers, for whose benefit the suit had been brought, although the case had been decided in the Circuit court, and brought to this court by supersedeas before the Code of 1849 was enacted. Indeed, prior to the enactment of that Code, it was the practice of some of the Circuit courts to render the judgment for the defendant’s costs (where such a judgment was to be given) against the beneficial party on the record ; and considering the extent to which the courts have gone in noticing him for certain purposes, I can perceive no well founded objection to it.

But if the propriety of such a judgment in a general way were more questionable than I think it is, certainly any court may notice the beneficial party on the record for the purpose of receiving his consent to such a judgment. Here, the plaintiff in error John D. Pate, for whose benefit the suit was brought, was the active party by whom it W'as prompted and dismissed. The attorney in the cause was his attorney, and the consent given to the dismission of the case and to the judgment for costs, may be fairly referred to him, and should be construed as his consent.

I am of opinion to affirm the judgment. The other judges concurred in the opinion of Bee, J.

Judgment affirmed.