It would be strange if the legal title to sue were not enough to support an action at law in the name of the trustee, without proof that the suit was brought at the instigation of the true cestui que trust. What has the defendant to do with that ? The recovery will protect him from a repetition of the demand, and he can ask no more. Such is the principle of Armstrong v. Lancaster, (5 Watts 68), and it is discouraging to find the professional mind still persisting in the old notion. Here there was no conflict of claims to the cause of action; and if there had been, the defendant would have had nothing to do with it. It would have been determinable by an issue between the parties, as soon as the money was brought into court. The Commonwealth might recover for the benefit of the concerned. If the defendant were vexed by the instigation of an intruder, he might rule him to file his warrant; and that would be protection enough. But the right to sue on a recognizance like this is not regulated by statute like the right to sue on a sheriff’s recognizance, on which the party must declare for his particular grievance. As to that, he is in effect the legal party. This is the ordinary case of an action by a trustee; and the plaintiff ought not to have been precluded.
Judgment reversed, and a venire de novo awarded.