
    Byrne and others executors of Byrne against Walker for the use of Hutchinson and others.
    In Error.
    
      Monday, January 7.
    
    ERROR to the District Court for the city and county ■ ■ J . J of Philadelphia. -
    Where there is a judgment existing against an intestate, ■which is found by. auditors, appointed by the Orphans’ Court, to absorb all the assets, neither they, nor the Orphans’Court, have any power to decide who is entitled to the benefit of.that judgment: the only object of their .appointmenfis to make a division pro rato,, among, the creditors, in certain cases mentioned in the. \ct pf 1794.
    Assignees under a commission of bankruptcy, issued in England, cannot support an action in their own names, but it seems, if no adverse claim appears, they may be marked as the cestui que use of a judgment obtained in the name of another, as plaintiff, and the'defendant cannot object to payment on that ground. . ■’
    If another claimant appear, the Court below, even after the judgment is affirmed, and the record remitted, might stop the payment, till the respective rights of the claimants were decided»
    
      This was an action in the name of Alexander W. Walker, j-pg plaintiff below, marked for the use of Joshua Hutchinson, Joshua Scholepeld, William Whiteman„ John Adams and Joseph Johnson, against Eleanor Byrne, Alexander AFCausland and Henry C. Byrne, executors of Patrick Byrne, cleceased, on a bond given by the said Patrick Byrne, as security for the faithful administration of Eleanor Wray, who' • ** * was the administratrix of George A. Wray, deceased.
    A verdict was given in the Court below, for the plaintiffs, for 1291 dollars, 69 cents, subject to the opinion of the Court, on the following facts in the nature of a special verdict: on which, the Court below gave judgment for the plaintiffs.
    • George A. Wray, deceased, was in his life time, indebted to Alexander W. Walker, by a bond in the penal sum of 10,000 pounds, on which judgment was entered by warrant of attorney, the 29th of October, 1811. After the death of George A. Wray, ■&.fieri facias post mortem, was issued against Eleanor Wray, administratrix, &c. of George A. Wray, deceased, in which judgment was confessed on the 22d of March, 1815. A fieri facias was issued to June, 1815, and returned nulla bona. On the 15th of July, 1815, which was before the return of the fieri facias, Eleanor Wray, paid 3900 dollars to Walker’s attorney.
    
      Patrick Byrne, was surety for the faithful administration of Eleanor Wray, by a joint and several bond, on which suit was brought in the name of the Commonwealth, against Patrick Byrne’s executors, abovenamed,- and judgment given for the Commonwealth. On the 18th of February, 1813, Eleanor Wray settled her administration account at the register’s office, when a balance of 5191 dollars 69 cents was reported to be in her hands for distribution. On the 16th of July, 1813, in the Orphans’ Court, the auditors reported that the account was just, and ought to be allowed. On the 20th of August, 1813, on the.application of Walker’s attorney, the Orphans’ Court appointed auditors to settle and adjust the rates and proportions of the remaining assets of George A. Wray, deceased, in the hands of the administratrix, among the respective creditors of the deceased, who reported the said balance of 519/ dollars 69 cents, and that the judgment confessed in his life, time by Wray, in favour of Walker, was the only judgment that was entitled to priority, and absorbed all the assets, but that Walker, after obtaining it, had become bankrupt in England, and insolvent in Pennsylvania, and that they (the auditors) could not say which class of assignees should of right receive the money.
    To the scire facias sued by the present defendants in error, against the present plaintiffs in error, on the judgment obtained, as aforesaid, by the Commonwealth,'it was objected in behalf of the executors of the surety in the administration bond.
    1. That until the Orphans’ Court, acting on the auditors’ report of the 20th of August, 1813, limit'and appoint by their decree and sentence, the per.soh or persons respectively. to whom the assets should be delivered and paid according to law, the surety in the administration bond cannot be made liable for the alleged breach of it.
    2- That the English assignees of Walker, the plaintiffs below, are not entitled to priority and payment of the money in question.
    3. That the legal capacity of Hutchinson and others, for whose use the suit was prosecuted, should appear of record.
    
      C. J. Ingersoll., for the plaintiffs in error.
    1. No suit lies against the defendants, until the Orphans’ Court shall decide to what persons the assets shall be paid. The condition of the administration bond is, that the administrators shall pay unto such person or persons respectively, as the Orphans’ Court, by their decree or sentence, limit and appoint. Act of the 19th of April, 1/94, sec. 1. (Purd. Dig. 288.) So, the auditors are to settle and adjust the rates and proportions of the remaining assets, due and payable to such respective creditors, &?c. Ib. sec. 14. (Purd. Dig, 291.)
    2. The English creditors have no right to this debt. It was decided in Milne v. Moreton, 6 Bmn. 353, that assignees under a commission of bankruptcy in England, cannot claim against a creditor here, who levies a foreign attachment % nor will the Court permit them to sue here.
    
      8. The legal capacity of the cestui que use, should appear on recorc], jje cannot recover without shewing his title.
    
      Bradford, contra, " ’
    
    stated that at the time the bond and warrant were given by Wray to Walker, the bond was given for a debt due to Alexander W. Walker and sons, and Co. He contended,
    1« That the Orphans’ Court had nothing to do with creditors, except to prevent illegal preferences, where the assets fall short. Auditors were appointed, and. they found that this single judgment absorbed all the assets, but did not pretend to decide who was entitled to receive the money due on the judgment. No claim was made on the trial on behalf of the assignees of Alexander W. Walker, under the insolvent laws here. He was insolvent here in his individual capacity-: but the judgment belongs to the partnership.
    2. Alexander W. Walker, had a right to mark this suit for whose' use he pleased'. There was no necessity to mark it for the use of any body; it is a mere memorandum. The issue on which the cause was tried was payment. No notice was ever given to the defendants not to pay the money to the plaintiffs. Nor are the defendants bound to, pay over the money after judgment: if any one thinks proper to claim a right to it, it may then be decided between them.
   The opinion of the Court Was delivered by

Tilghman C. J.

This is an action in the name of Alex. ander W. Walker, (marked for the use of Joshua Hutchinson and others,) against the executors of Patrick Byrne, deceased, on a bond given by the said Patrick Byrne, as security for the faithful administration of Eleanor Wray, who was administratrix of George A. Wray, deceased. It appears, that George A. Wray, being indebted to the house of Alexander W. Walker and sons, and Co., gave his bond, (with warrant of attorney to confess judgment) to Alexander W. Walker, the plaintiff, one of the said house, in the penalty of 10,000 pounds, to secure the said debt; and judgment was entered on the said bond, in the life tithe of the said George A. Wray. Eleanor Wray settled her administration account in the Orphans’ Court, on which a balance of 5191 dollars 69 cents, was found to be in her hands, subject to the payment of the intestate’s debts. Auditors were appointed by the Orphans’ Court, to ascertain the amount of debts due from (the intestate, &c. according to the Act of Assembly, in such case provided, who reported the balance abovementioned to be in the hands of the administratrix, and that Walker’s judgment, which was the only judgment against the intestate, was more than sufficient to cover the whole balance aforesaid. And in addition to this, the auditors reported “ that after the entry of Walker’s judgment, he had become a bankrupt in England, and insolvent in Pennsylvania, and that they, the said auditors,, under the said circumstances, could not say .which class of assignees should of right receive the money.”

On the trial of the cause in the Court below, the defendants’ counsel made two objections to the plaintiff’s recovery, which have also been urged on the argument in this Court. 1st. That no action lay against the defendants, on the administration bond of Patrick Byrne, until the Orphans’ Court decided on the report of the auditors. 2d. That the English assignees of Walker, under a commission of bankruptcy, issued against him in England, (for whose use. this suit is brought,) cannot support an action in Pennsylvania.

1. There is no weight in the first objection. It would be in vain to wait for the opinion of the Orphans’ Court, because that Court had no right to decide, who was entitled to the benefit of Walker’s judgment. No decree which that Court could make on that subject, would be obligatory on the Courts of common law. Indeed, the auditors ought not to have meddled with the property of the judgment. When they had said, that its amount was sufficient to absorb the whole balance in the. hands of the administratrix, they should have stopped. The only object of appointing auditors, is to make a division pro rata, of the assets, in certain cases mentioned in the Act of Assembly. But here, there could be no division pro rata ; because there was but one judgment, and no other debt of equal dignity. The assets were all absorbed by this judgment. To whom the benefit of the judgment belonged was another, question, with which the auditors had nothing to do. . '

2. Neither do I think, there is any difficulty in the second question. Assignees, under a commission of bankrupt, issued in England, cannot support an action in their own names, jn this Commonwealth. But, this action is not brought in ^e names of th«- assignees. It is brought in the name of Alexander W. Walker, the obligee in the bond of George A. Wray. The form of action, therefore, is right. Whether the English assignees are entitled to the benefit of Walker’s judgment, is a question, not necessary, at present, to be decided. I may say, however, that for any thing that appears to us, they are entitled ; because it is not stated in the record, that Walker ever made an assignment, under the insolvent Acts of Pennsylvania, or that he ever made a voluntary assignment of this judgment, in Pennsylvania, or elsewhere. And, if that be the case, there is nothing to interfere with the right of the assignees, under the English commission. It has been decided by this Court, that an attachment issued from one of the Courts of this State, will prevail against the assignees under an English commission. But, we hear of no attachment in this case. In fact, the right of the English assignees, has not been contradicted by any but the defendants. No person, whatever, has given notice to the defendants, of any counter claim. It is an impediment raised by themselves—for their own protection. If any other persons had claimed the benefit of this judgment, the Court would have let them in, and given them a trial. Or even yet, after affirmance of this judgment, on good cause shewn, the Court below, after the record is remitted, might stop the payment of the money, until it was ascertained, whether any other claimant had better right than the English assignees. But, the defendants have no pretence to stay the judgment on a suggestion that perhaps some other person may, hereafter, appear, who has better right. The money is due from the defendants, and they will be safe in paying it to the person to whom it is awarded by the judgment of this Court.

I am of opinion, that the judgment of the District Court should be affirmed.

Judgment affirmed.  