The defendant objects that this action cannot be sustained, because the nominal plaintiffs have relinquished to Haskell all their interest in the fish which was put into the defendant’s hands ; that the suit'was brought without their authority, and that they desire to have it discontinued. In answer to this objection an assignment is produced, ol a date prior to the commencement of the action, conveying all their interest to Baker. He thereby became the owner of the fish, and they authorized him expressly to use their names for his own benefit. In the case of an equitable assignment of a chose in action, the assignee has a right to use the name of the assignor to enforce the demand. This objection therefore cannot prevail. The suit is rightfully in Court, and is to be determined upon its merits.
While the property was in the hands of Lancy, it was attached in a suit against Abby. If it was competent to the officer to attach the whole, yet in levying the execution he could lawfully sell only the right of the debtor. It would seem then that the two plaintiffs could maintain this action for -their two thirds of the property.
By the assignment the interest of Eldridge and Baxter pass ed absolutely ; but Abby’s interest passed subject to the lien created by the attachment. We must then inquire whether the attachment was dissolved ; for if it was, the sale of Abby’s interest became absolute. When the attachment was made, the fish was put into the hands of Lancy, and he became bailee for the officer. To preserve his lien, the officer must retain either actual or constructive possession of the chattel attached. Under these circumstances Lancy sold the fish, but without authority from all the parties concerned. It is true, Haskell authorized a sale, but it was on condition that Abby should consent to it; and if he had consented, the sale would have *356been lawful. But Lancy sold without such consent; aad though Abby subsequently, on November 24, 1824, ratified the sale, he then stood in such a situation that his ratification would be of no avail. He had assigned his interest to Baker, and he therefore could not ratify a previous unauthorized act in relation to the property. It is not pretended that the sale was made in pursuance of the statute allowing a sale of property attached on mesne process, and not being authorized by the parties, the operation of it was to dissolve the attachment and leave the assignment to Baker to take effect.
This view proceeds upon the ground of the assignment being bona fide. A suggestion has been made, that it was fraudulent, by reason of Baker’s promise to account to Baxter for a portion of the property. This does not per se render it fraudulent. There might be a secret trust which would render it invalid as against creditors, and which would be a proper subject of inquiry for a jury ; but no one except a purchaser or a creditor of Baxter could avoid it. No such purchaser or creditor is now before us, and it is not necessary to consider whether the assignment be fraudulent and void as between Baker and Baxter.
The Court being of opinion, that the assignment passed the property to Baker, as between Baker and the plaintiffs, absolutely, and as between Baker and Abby, subject to a lien which was dissolved, judgment is to be rendered in favor of the plaintiffs, for the benefit of Baker