{
  "id": 11277211,
  "name": "J .J. OSBORNE, Assignee vs. JOSEPH HENRY",
  "name_abbreviation": "Osborne v. Henry",
  "decision_date": "1872-01",
  "docket_number": "",
  "first_page": "354",
  "last_page": "356",
  "citations": [
    {
      "type": "official",
      "cite": "66 N.C. 354"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T15:10:37.048272+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "J .J. OSBORNE, Assignee vs. JOSEPH HENRY."
    ],
    "opinions": [
      {
        "text": "PeaksoN, C. J.\nAt first we were inclined to the opinion that all questions of costs and security for the prosecution, \u2022 ought to be left to the legal discretion of the Judge in the Court below, and we were reluctant to interfere with his ruling because he being on the spot, could form a better opinion of what would further the ends of justice, from the surroundings-of the \u2022case, than we are in most cases able to do ; such matters as a general rule should be left to him. But our conclusion is, that defendants are entitled to invpke the supervisory power of this Court, in order to protect their rights, to be secured in regard to the costs of the litigation.\nHere the assignee in bankruptcy proposes to take the place of the original plaintiff, and to proceed with the case for the 'benefit of the fund in bankruptcy, without making any provision for the costs of the prosecution. Ho puts his application upon an affidavit, which is wholly deficient in that degree of candor and fair dealing, which a Court has a right to expect. \u201cSaid bond was good at the beginning of the Court,\u201d leaving it to be inferred that it was not good now ; \u201che is not able to give better security,\u201d leaving it to be inferred that he is not able to give the security required by law; and on this he asks \u201cto be allowed to prosecute with existing security,\u201d that is, no .security at all.\nHad Osborne made application to sue \u201cin forma pauperis\u201d \u25a0it would have presented the question whether an assignee in bankruptcy can be allowed to sue without giving security or .making a money deposit, which it seems would fall under the \u2022principle that an executor or administrator is not embraced in the provision for suing \u201cin forma pauperis,\u201d but he seeks to get rid of that objection on the ground of an \u201c existing security,\u201d which as we have seen is worthless. \u2022 Even supposing that the security of Israel, the original plaintiff, was solvent and willing to continue bound in the new aspect, which the case 'had assumed by the intimation of Osborne the assignee.\nIn the absence of both of these facts, we see no reason why the defendant has not a right to [insist upon being secured as \u25a0to the costs of-the litigation. This objection was taken in \u201capt fame.\u201d\nThere is error in the ruling of His Honor, which the Court can review : Osbirne when he applied to-be made plaintiff,, and to be allowed to proceed with the action- f\u00f3r the benefit of the fund in bankruptcy, ought to have been required to give-an undertaking or make a money deposit out of the fund, sufficient to cover the costs.\nIf the objection had not been taken in \u201capt time.\u201d and the case had been allowed to go on until it was called for trialj. His Honor might well have exercised the discretion to order the trial to proceed, without further security, inasmuch as no* further costs would be incurred, and the motion to dismiss at' that stage would have been a manifest attempt to stifle justice..\nError, this will be certified.\nPer Curiam. Judgment reversed.",
        "type": "majority",
        "author": "PeaksoN, C. J."
      }
    ],
    "attorneys": [
      "Ovide Dupr\u00e9, for plaintiff.",
      "D. Coleman, for defendant."
    ],
    "corrections": "",
    "head_matter": "J .J. OSBORNE, Assignee vs. JOSEPH HENRY.\n1.^Questions of costs and security for the prosecution of suits, should as a general rule, he left to the presiding Judge in the Court below, yet a defendant is entitled to invoke the supervisory power of the Supreme Court to protect his rights in regard to the costs of litigation.\n2. When an assignee in bankruptcy proposes to take the place of the original plaintiff in a suit, he ought to be required to give an undertaking, or make a money deposit out of the fund, sufficient to cover the costs.\n3. Whether an assignee in bankruptcy can sue ini forma pauperis. Quere? It would seem to fall under the principle, that executors and administrators arc not embraced within the provisions o\u00ed law allowing persons to sue informa pauperis.\nThis was a rule for security, beard before Cannon, Judge, Spring Term, 1810, of Henderson Superior Court.\nAn action was brought by one Israel against the defendant for the conversion of a mule. After the suit was brought Israel became a bankrupt, and the plaintiff was appointed his assignee, and on motion was made party plaintiff in the place of Israel.\nA rule for better security was taken upon the assignee, who answered upon affidavit \u201c that said bond was good at the beginning of the suit, and that he was not able to give better se\u2022curity,\u201d and asked to be allowed to prosecute with the existing security, which was allowed by the Court.\nThe defendant at the next term moved to dismiss for want \u2022 of a prosecution bond, and for \u201cinsufficiency of the application to prosecute with existing security.\u201d . The motion was overruled and the defendant appealed to the Supreme Court.\nOvide Dupr\u00e9, for plaintiff.\nD. Coleman, for defendant."
  },
  "file_name": "0354-01",
  "first_page_order": 372,
  "last_page_order": 374
}