#### EZRA L. VARNEY *vs.*SETH B. BARTLETT.

APPEAL IN EQUITY PEOM DANE CIRCUIT COURT.

Tbe party really in interest in the subject of a suit in chancery must be made com plainant.

In equity, a suit cannot be brought in the name of another, for the use of the party really interested.

where the assignee of a chose in action resorts to a court of equity, to enforce his rights therein, the suit must be brought and prosecuted in his own name, and not as in cases at law, in the name of the assignor, for his use.

This was a motion made by tbe complainant, to reverse tbe decree rendered in bis favor in tbe court below, and from wbi'cb tbe defendant bad appealed. It is sufficient to say, in tbe statement of tbe case, that tbe interest of tbe plaintiff in tbe subject matter of tbe suit, bad, as was supposed, been transferred or assigned, and tbe assignee bad prosecuted tbe matter in tbe name of tbe assignor, for bis use, in tbe same manner as in cases at law. A decretal order having been rendered, favorable to tbe complainant (or tbe *cestui que use),*tbe defendant appealed; whereupon tbe nominal plaintiff, viz: tbe assignor of tbe choses in action, which were tbe subject matter of tbe suit, and in whose name tbe suit bad been brought (as before remarked), appeared in this court, and made tbe following motion, founded .upon tbe affidavit, which is also here presented:

*[Title, éc.] “*And now, at this time, comes tbe said Ezra L. Yarney, by Ainsworth, Johnson and Lewis, bis solicitors, and only solicitors and counsel in this cause,' and moves tbe court to reverse tbe decree of tbe court below, made and entered in this cause, and to dismiss tbe bill filed by tbe complainant in this cause, according to tbe stipualtion. and papers on file in this cause.”

*277Tbe affidavit on wbicb tbe motion was in part founded, was as follows:

*[Title, Venue,*d?c.] “ Ezra L.. Varney, of tbe county of Dane, and state of Wisconsin, being first duly sworn, says, that be is tbe complainant in tbe above entitled suit; that at tbe time be made answers to tbe interrogatories on file in this cause, at tbe office of H. E. Frink, one of tbe solicitors and counsel for tbe defendant, and wbicb said answers to said interrogatories are on file in this cause, be was perfectly aware of wbat be was doing, and cognizant of bis rights, so far as tbe subject matter of tbe suit is concerned; that said suit was commenced without bis knowledge or consent, and has been thus far prosecuted without bis approbation ; and that be never retained or employed Yilas, Roys and Pinney, or Smith and Keys, or any or either of them, to appear in said suit, and that tbe only solicitors and counsel be has ever employed, or authorized to appear for him in said suit, are Messrs. Ainsworth, Johnson and Lewis, of tbe city of Madison, in tbe county of Dane, aforesaid, whom be has recently retained, as bis sole and only solicitors and counsel in said cause.

“ And this affiant further says, that be has no interest whatever in tbe result of tbe said suit; that tbe said suit was commenced, as this affiant believes, by James Richardson of tbe firm of James Richardson & Co., of tbe city of Madison aforesaid, for tbe furtherance of tbe interests of tbe said Richardson, or of tbe said Richardson & Go., and further saitb not.”

There was also filed tbe following stipulation:

*[Title,*c&c.] “ It is hereby stipulated and agreed, by and between Messrs. Ainsworth, Johnson & Lewis, tbe sole and only solicitors and counsel for tbe said complainant, Ezra L. Yarney, and H. E. Frink, Esq., one of tbe solicitors and of counsel for tbe said defendant, Seth B. Bartlett, that an order or decree be made and entered in this cause by this court, reversing and an- ■ nulling tbe final decree made and entered in said cause in tbe court below on the day of A. D. 1856, from wbicb an appeal was taken to this court on tbe day of January *2781857, by the said defendant, and that the bill of complaint filed herein be dismissed without costs to either party.

(Signed) “AinswoRth, Johnson & Lewis,

*Solrs. and Counsel for complainant.*

N. E. Eeink, *Sol. and Counsel for*defendant.”

*Per Curiam.*

The rule in equity is, that the real party in interest must be complainant in the suit. Though the assignee of a chose in action not assignable at common law, must bring an action at law in the name of the assignor for his use, yet in chancery proceedings the practice is different. The party really in interest must proceed in his own name. Indeed, as a general rule, a party complainant will not be permitted to prosecute his suit after he has parted with his interest in the subject matter thereof. The principal object of a court of equity is to ascertain and to adjudicate upon the real equitable interests and rights of the parties in the object of the suit. Let the following order be entered:

*[Title, Sc.] “*On reading and filing the affidavit of the complainant showing that he has no interest in this suit, and that the same is prosecuted without his approbation, and the power of attorney also on file, constituting Messrs. Ainsworth, Johnson & Lewis, his sole and only solicitors and counsel for him in this cause; and also the stipulation on file herein, that the final decree of the court below bé reversed and annulled, and the bill dismissed without costs to either party, therefore on motion of Messrs. Ainsworth, Johnson & Lewis, solicitors, &c., for complainant, and H. E. Erink, solicitor, &c., for the defendant, made in open court, ordered that the said final decree of the court below made and entered in this cause be, and the same is hereby reversed, annulled, and held for nought, and that the complainant’s bill of complaint be, and the same is hereby dismissed without costs to either party.”