The opinion of the court was delivered June 30, by
Bell, J.The offer by the defendant below, to prove the receipt of the balance of the avails of purpart No. 2 by the guardian of Mrs. Moore’s children, was, we think, improperly rejected. Its exclusion, we are told, was put upon the ground that as it did not appear the payment by Miller to Keim was made with the assent of Mary Kidd, the former was subject to her action for her proportion of the funds, and consequently there was no such privity in respect of this transaction established between her and the wards as would entitle her to regard them as debtors; or, secondly, if they may be regarded as standing in that relation, the proffered defence must be treated as set-off, which was not available for want of the proper plea and notice, and because the claim is barred by the statute of limitations. But we are persuaded this view of the ground occupied by the defendant is incorrect. At the time when Miller handed over to Keim, as guardian, the balance remaining in his hands, after payment of the intestate’s debts, both Mrs. Kidd and Mrs. Shoemaker were indebted to the children of their deceased sister for their shares of the valuation of purparts Nos. 1 and 3, adjudged by the Orphans’ Court to the surviving sisters. All the parties for whose use the action is brought, being minors, were then represented by Keim, as their guardian, who in that capacity received the money in question. He subsequently accounted for the sum so received, to his wards, for a part of the offered proof was that becoming embarrassed, he placed the money paid him by Miller in the hands of one Stichter for the use of the minors, and it was, long after the commencement of this suit, paid to William Moore, as the survivor of his brothers and sisters, by virtue of an order of the Orphans’ Court, made upon his application. At the moment of the payment to Keim, he, Miller, and the surviving sisters lived in the same town, and it is obvious, from the accounts settled by Miller as trustee, and by Mary Kidd, the defendant, as administrator of the intestate’s estate, as well as from the general circumstances attending the transaction, that the parties interested were aware of the disposition made by the trustee of the money which had come to his hands. Yet, though still living, it is not asserted that either Mrs. Kidd or her sister, Mrs. Shoemaker, ever called upon Miller to pay to them their proportions of the sale made by him, or in any manner indicated they esteemed him their debtor. More than ten years have
■ *434run since the money was handed to Keim, and at the end of that period we find one of Mrs. Moore’s children, who, as representing the others, is the active prosecutor of this suit, claiming and actually enforcing payment of the sum received by his guardian, as money belonging to the wards. Surely, the facts I have imperfectly detailed afford sufficient ground for the inference that payment was made by Miller to Keim, and received by the latter with the knowledge and assent of the surviving sisters, as a payment on account of their indebtedness to the wards. Indeed, under the circumstances, it is difficult, if not impossible, to escape this conclusion, more especially as the defendant below-now so avers, and the party beneficially interested as plaintiff claims the fund as belonging to him. As showing or tending to show payments, the offered proof was strictly admissible under the plea of payment, and, we think, ought ,at least so to have been submitted to the jury. The refusal to permit that branch of the trying tribunal to say whether the actors in the transaction did not so intend it, was consequently erroneous. I may add, it would be a subject of regret were a defence pro tanto, apparently so meritorious, defeated by the unnecessary application of a mere technical reason.
In every other particular, the action of the Court of Common Pleas is correct. A recognizance taken in the Orphans’ Court, after proceedings in partition, is unlike a sheriff’s recognizance or an official bond, where the remedy is regulated by statute. It is simply a common-law obligation of record, taken in the name of the commonwealth, for the security of the several parties-in interest. But the commonwealth is, properly, the conusee, and therefore the legal title to sue resides in her. In every instance the action is properly brought in her name, and may be sustained without the suggestion of any other. But as each individual having an interest in the recognizance may use the name of the commonwealth to enforce that interest, convenience requires the name of the cestui que use who sues to be suggested of record; and this is constantly done where the proceeding is instituted by any less than the whole number of claimants: Good v. Good, 7 Watts 199. Perhaps in every instance, the name of the party suing ought to be noted, since it seems the judgment should not be for the penalty, but for the precise sum found to be due to the individual or individuals: Stewart v. Martin, 2 Watts 200. But even a mistake in this particular furnishes no defence against the legal plaintiff. To the defendant it is of no consequence who claims the money, since the court will look to its proper distribution after recovery : Commonwealth v. Lightner, 9 W. & Ser. 117; though doubtless the interference of a mere intruder without pretence of equitable title, would be forbidden.
It is objected here, that more than one, and less than the whole number of persons interested, are marked of record as cestuis *435que use. And what of that ? The cases show that' one of several may proceed under the recognizance,, and why not any number less than all ? There could be no question of mis-joinder or non-joinder, for the Commonwealth is always the legal party; and as the recognizance is taken' for the security of each and all there is no technical difficulty] nor any objection in principle against suggesting the names of as many equitable claimants as choose to join. By the settled rule, they will recover just so much of the whole fund as they may show themselves entitled to, leaving the balance for those of the remaining parties who may afterwards sue. It was ruled in one of the cases already cited, that judgment, in such an instance, ought not to be given for the penal sum, as a cautionary judgment is unnecessary. It would follow from this that the verdict rendered below' for an aggregate sum, specifically due to the named cestuis que use, is in accordance with established practice. I may remark, in conclusion, that there would seem to be great propriety in the joinder of parties complained of here, since they represented one share of the estate. That the court was right in refusing to discriminate between them on the application of the defendant, or swear the jury in a particular way, is too plain for remark. Even had a mistake been committed in this point, I do not see how it could have affected the defendant injuriously. Judgment reversed.