After a continuance, the opinion of the Court was delivered by
Weston C. J.Whoever sues another in the name of a fictitious plaintiff, either one not in being, or one who is ignorant of the suit, is liable to be indicted, if he is not answerable to the party injured in a civil suit. An action lies also for a malicious prosecution, which may generally be supported, when the prosecution was instituted without probable cause. But a man may prosecute any action, for which he has probable cause ; at the peril only of being adjudged to pay costs. Many claims are set up and pretended, which turn out to be unwarranted. They are found to be false, because there is a failure of proof, and it may be of truth also, in the averments, by which they are attempted to be supported. Hence such claims may well be denominated false and pretended. But there might have existed such circumstances, or such color for them, as to amount to a probable cause.
If in this case there was probable cause, which might have existed, and which is not disproved, Reed might lawfully prosecute the claim, of which the plaintiff complains; or he might assign it to another, which if the demand be not negotiable, carries with it an authority to the assignee, to prosecute thereon a suit in his name. It does not appear, if Reed had been as plaintiff the only party in interest, that he had not a lawful right to prosecute the suit. Nor does it appear, but what Wells, the assignee, had reason to believe that the action was well founded. Certainly there is nothing in the case showing, that he knew it to be groundless. If there was, he might be charged for a malicious prosecution, upon proper averments, which would afford to the plaintiff an apt remedy.
Still less does it appear that the defendant, to whom the demand was assigned after the action, had the least knowledge or suspicion, that it was not a fair claim. He had a lawful right to *260purchase a chose in action, and to prosecute a suit, by which its recovery was attempted to be enforced. It is not pretended, that the defendant made any promise, express or implied, to the plaintiff’s testator, to pay him the costs, or indemnify him for the expenses of an action. And he was guilty of no tort or wrong, which would render him liable to the plaintiff’s testator. The only ground upon which he can be charged, is, that being substituted for the original plaintiff, he was liable for costs. These are not allowed at common law ; and therefore can be claimed only under the statute.
By the act, regulating judicial process and proceedings, statute of 1821, ch. 59, sec. 17, it is provided, that in all actions the party prevailing shall be entitled to his legal costs. They are to he ascertained by the order or judgment of the court, before whom the action is pending. Payment is not enforced in our practice by attachment, but by execution. An action of debt may be brought upon the judgment; but neither assumpsit or case can be maintained, for the recovery of legal costs. It is insisted, that the statute allows costs to the prevailing party, but does not prescribe against whom they shall be adjudged ; but the necessary implication is, that they must be awarded against the party, who does not prevail; and this, by the uniform practice of our courts, is the adverse party upon the record.
The real party in interest, if disclosed to the Court, is protected from any fraudulent attempts of the nominal party to defeat his rights ; but no judgment is ever rendered against him. If he claims the equitable interposition of the Court in his favor, they may in their discretion grant it, upon condition that he shall give security to the adverse party for his costs; but this would be matter of stipulation ; and could form no part of the final judgment of the Court. Upon the facts in this case, we are of opinion, that costs neither have nor could be legally awarded against the defendant.
In Rogers v. Haines, 3 Greenl. 362, the first count was for a malicious prosecution; the second was for bringing without authority a suit in the name of another, which he knew to be paid, but without the imputation of malice. The court held, that the scienter, alleged in the second count, was an important and sub*261stantive part of the charge, and must therefore be proved, and this not having been done, they found it unnecessary to decide, whether the averments in that count went far enough to sustain the action. In Calhoun v. Dunning, 4 Dal. 120, the court decided, that the party beneficially interested, who prosecuted in the name of a trustee, should be bound by the result.
Webb v. Ward et al. 7 T. R. 292, was brought by an uncer-tificated bankrupt, for the benefit of the assignees, but the court directed a stay of the proceedings, until security was given for the costs. But in Snow v. Townsend, 6 Taunton, 123, where the plaintiff bad been discharged from prison, under the insolvent act, and had been sued for a debt due to him before his assignment, which the assignee had refused to sue, the court would not stay proceedings, until security was given for costs, saying that the case of Webb v. Ward had been much questioned.
The authorities, cited from the fourth of Johnson and the fifth of Cowen, were cases of insolvency. In Warring v. Barrett, 2 Cowen, 460, the plaintiff was out of the State : and the Court refer to a rule of their practice. But as costs in our State depend on statute, the law and usage of other States cannot be safely resorted to for our guide.
The opinion of the Court is, that the Judge below should have instructed the jury, that the action was not supported by the evidence in the case ; and the exceptions are accordingly sustained.