Doe v. Penfield

Platt, J. delivered the opinion of the Court. There is no doubt of the general rule, that if the plaintiff is not a real person, it maybe pleaded in abatement; arid the question is, whether the present case forms an exception to the rule ? I incline to think it does not; and the acknowledgment of counsel that it is a case offirst impression, and that no analagous case is to be found, affords strong presumption against this novel action. I think it best accords with the reason and policy of the law, that the fiction in the action of ejectment, should be confined,-in its operation and ■effect, to the local jurisdiction where it is adopted. The laws of foreign governments may so regulate their practice 'as to extend a like fiction to other actions, so that the real parties might never appear on their records; but we are under no obligation to modify our practice according to such foreign regulations. To sustain an action in the name I of a fictitious person, upon a foreign judgment, would subject our citizens to unjust hardships. There is no reciprocity. The defendant may be subjected to much difficulty in regard to his right of setting off any demand which he •may have against the real plaintiff; and if judgment in this action be for the defendant, he c&n have no effectual judgment for his costs. It is not a sufficient answer to say, that ■the defendant might have a stay of proceedings till the plaintiff filed security for costs. That remedy is merely cumulative, and it may prove ineffectual. The defendant, in case his defence prevails, is entitled to a judgment against a real plaintiff, agaitist whom he might issue an immediate ■execution, if such plaintiff were at any time found here, or had property here. The defendant is entitled to a judgment which he might send abroad, and which, per se, would be [311] evidence of a legal claim against the real plaintiff. A judgment against John Doe, for costs in this suit, would afford a very questionable ground of action in Canada, in a suit against William Dickson. If Dickson have any remedy here, for those costs, it must, I think, be a special action on the case, in his own name. The defendant is entitled to judgment on the demurrer. Judgment for the defendant.