Norton v. Tuttle

Citations

• 60 Ill. 130

Syllabus

<p>1. Power op attorney — dismissal of suit. Where a party gives to another a power of attorney, which recites that the maker is indebted to the attorney, authorizing him to lile a bill to set aside a conveyance made by the guardian of the maker of the power, and to compel the guardian to account, and, out of the proceeds realized from the suit, the attorney should be paid: Eeld, that after such a suit is commenced in the name of .the person giving the power, he may dismiss the suit notwithstanding the opposition of the attorney.</p> <p>2. Equitable assignment. The bare right to file a bill in equity growing out of the perpetration of a fraud on a party, is not assignable, being contrary to public policy and' savoring of the character of maintenance. Neither is the right of action for a tort assignable. The assignor must have a substantial right, and not a mere naked right, to overset a legal instrument, or to maintain a suit. The assignment, under such circumstances presented by this case, must be regarded as void and against public policy.</p> <p>3. Same — power of attorney. Where a claim of this character is not assignable, the giving of a power of attorney by the holder of the mere naked right to his creditor, authorizing suit to be brought and prosecuted in his name, the claim not being assignable, confers no rights on the attorney in fact, and therefore nothing upon which to found a claim of an irrevocable power to prosecute the suit. The position of- the attorney is less favorable than if fys were assignee.</p> <p>4. Equitable jurisdiction. As to the .question of jurisdiction of a court of equity, the case of Whiting v. Roberts, 22 Ill. 381, considered and distinguished.</p>