Opinion op the Court,
by Ch. J. Boyle.TO stay proceedings upon a judgment at law recovered in the name of Turner, for the use of Triplett, in an action of assumpsit, Cox filed this bill in chancery, claiming a set-off for the amount of two notes which he alleges were executed by Turner to Wells, and assigned i Xm 11 l I • J & by Wells to him.
Turner, who was alone made defendant, answered, and on a final hearing, the circuit court allowed the set-off claimed by the bill, and for that amount decreed the judgment at law to be perpetually enjoined,- and from that decree this appeal is prosecuted.
If Turner were alone interested in the judgment at law; we should have no doubt of the correctness of the decree; for the jurisdiction of a court of equity to make the set-off, would be maintainable upon the score of his insolvency, alleged in the bill and not denied in his answer; and upon the merits, there would have been but little room for questioning the propriety of the decree. But Turner, in his answer, disclaims any interest in the judgment at law, alleging that he had transferred to Triplett, the account on which the action was founded, before the suit was brought, and Triplett’s interest is apparent from the record of the action at law; for the writ and declaration, on their face, state the action to be brought for his use. Triplett, therefore, being interested in the judgment enjoined, ought to have been made a defendant; and this not having been done, the decree is, on that ground, erroneous.
The decree must be reversed with costs, and the cause remanded, that a reasonable time may be allowed for making Triplett a party; and on failure to do so, the bill must be dismissed without prejudice, but with costs.