The opinion of the Court was delivered by

We do not see the benefit which the appellant is to derive by resisting the judgment rendered by the Circuit Court in this case, unless it may be through the matter of costs.

He does not deny his liability on the bond; so far from it, he avers that he holds an assignment of three out of five shares of it, implying that he is bound to pay the remaining two shares still due.

The orders made by the Court below are so carefully worded that they must protect him from any suit which may be brought by any party having a supposed interest in the bond, for the names of all who can possibly be interested in it have been ascertained by the Referee, and his report stands confirmed. Still further, the record in the case in which the bond was taken is set out in the complaint, not denied in the answer, and the proof on which the report of the Referee is found was itself a matter of record.

The appellant made no exception to the report, thus admitting that the parties in interest were those so found by the Referee. His delay in the payment of the bond, he avers, has arisen from his inability to ascertain who was entitled to receive the money due on it.

This obstacle, at least, has been removed by the proceeding. The-Act of 1868 did require a transfer of the bond to the Clerk of the Court; and Clyburn, the Clerk, could have maintained an action upon it in his name as the successor of the respondent. It is said in the argument on behalf of the appellant that this bond had been so transferred. If so, Billings, to whom it was made payable, must have afterwards received it from Clyburn, who is not only Clerk of the Court, but acted as Referee in the case. It must, therefore, be assumed that he authorized Billings to bring the complaint in his own name as late Commissioner for the benefit of *122those really interested. In the case of an ordinary bond assigfled, the assignee may sue in the name of the assignor.

Under Section 136 of the Code, a trustee of an express trust may sue alone; and, “within its meaning, a person with whom, or in whose name, a contract is made for the benefit of another is construed to be a trustee of an express trust.”

It is possible that a strict compliance with mere technical form would have been better fulfilled if the complaint had been brought in the name of the Clerk. The relief sought was to be administered through the equitable jurisdiction of the Court, and we do not see in its grant of it such error as would justify an interference.

The motion is dismissed.

The costs of the respondent in the Circuit Court have been provided for by its order. Each party will pay his own costs since accruing.