KERR AND WIFE v. THE BANK OF CHILICOTHE.
Error — assignee of an insolvent — privity—equitable holders may sue in name of legal assignor —writ quashed at the costs of the attorney.
The assignee of a chose in action not negotiable, as of a judgment, may sue in the name of the assignor, and the assignment will be deemed his authority lo do so.
One becoming privy to a judgment by operation of law, sues in his own name, and avers the facts, which show his interest and right to sue.
If a writ of enor has been sued out improperly, it will be dismissed at the costs of -the attorney ordering it.
Writ of Error. Bond and Leonard showed to the court, that Kerr was an insolvent debtor, and had assigned all his effects, &c. to Patterson, the commissioner of insolvents, and produced ap order of Kerr, and one from the commissioner of insolvents, to dismiss this writ, and thereupon asked leave to have it struck from the docket.
Doziglas,
who had sued out the writ, opposed the leave, and stated that he sued it out at the instance of one Page, who had a judgment against Kerr, junior to that of the bank of Chilicothe, which he wished reversed to let in his judgment. He claimed that Page was privy in interest to the judgment, and that the commissioner of insolvents agreed that the writ might be prosecuted, if he was indemnified against the costs, which had been done.
Wright, J.
The judgment' reduces the subject to a debt of record; and is not transferable by assignment so as to vest the assignee with the legal right. The assignee of a chose in action, not negotiable, by virtue of his equitable interest, may sue in the! name of the assignor, the assignment being held authority to do so.| But where the person suing becomes privy to a judgment by operation of law, as an executor or heir, if he would sue, he sues in his own name, and by averment spreads on the record the matter which makes him privy to it, and establishes his right to sue. A judgment creditor of a fund affected by an erroneous judgment, if he be privy, should sue in his own name, and show his right to sue by averment —he has no right to sue in the name of the plaintiff.
This writ has improvidently issued, and is ordered to be dismissed at the cost of the attorney suing it out.