It is agreed that this suit was carried on in the name of the plaintiff for the use of Thomas Shaw, who obtained an assignment from the plaintiff shortly before he was discharged by the insolvent act. The court are of opinion that under these circumstances, Shaw may be considered as the substantial plaintiff, although his name does not appear on the record. The defendant might have pleaded that the action was for his use, and made a set-off of a debt due from him. Having used the process of the court for his exclusive benefit, it is reasonable that he should be answerable for the costs. The rule is therefore to be made absolute; but it must be entered on the record, at the suggestion of the defendant, that the suit was for the use of Shaw.

Rule absolute.