delivered the opinion of the court:
It is contended by the plaintiffs in error, that the declaration is defective, because it contains no allegation that the assignment was made to the defendant in error, by-Fulton, as receiver of the estate of Dickey; and that it shows no cause of action, because Fulton had no authority to make such assignment. In our opinion, the record authorizes no such conclusion. The term receiver, as used in the assignment, is a mere word of description, and has no relation whatever to his fiduciary capacity as trustee. The declaration, therefore, is held good upon this point; and Fulton, having full authority to assign the instrument, passed it to the defendant in error in his proper person.
To constitute an assignment in an. official character, as sheriff", as executor, and the like, it is necessary to make an averment, showing in what character the party sues; and so it has frequently been determined in this Court. But where words are mere words of description, no such allegation or averment is necessary, because the party sues in his individual, and not in his representative character.
The defendant below craved oyer of the writing sued on, which. was granted, by filing the original; and, they saying nothing farther in bar of the action, judgment was entered for the plaintiff. The question now is, upon the prayer and granting of oyer, can the party asking for it take any advantage of a want of sufficient assignment? We think it clear that he cannot. Had he wished to question the assignment, he should have craved oyer of it, as well as of the original obligation, and then he would have brought that fact to the notice of the Court. This he did not do, but merely craved oyer of the original. The granting of this oyer certainly did not give him oyer of the assignment; for the assignment is wholly a distinct matter from the original. If oyer is granted of a bond with a condition, the bond being complete without the condition, oyer of the one does not give a party a right to oyer of the other; but it must bo demanded of both, if wanted. Cook vs. Runnington, 6 Mod., 237; Campbell vs. Vaughn.
In order to bring error, the'party who insists upon oyer must enter his prayer on record, oyer being in the nature of a plea. 2 Salk., 498; 2 L. Ray, 290. In Serries vs. Harridge, 1 Saund. 9, and Serj. Williams’ note upon that decision, the whole subject of oyer is examined with much accuracy and learning, and the principles there settled clearly show, that upon a bond or promissory note, with endorsement, the granting oyer of the original does not necessarily give oyer of the endorsement; but the party, to entitle himself to oyer of the endorsement, must have craved it, and have demurred or pleaded, in order to bring the question before the Court. This being the case, as there was no oyer craved or granted of the assignment, the judgment below must be affirmed, with costs.