
    Commonwealth versus Crowell Hatch.
    The Court will not sustain an action upon a bond given to the commonwealth by an officer, conditioned for the faithfid performance of the duties of his office, where no law has authorized any person to avail himself of a breach of the condition, unless it appear that the action is prosecuted by one of the public law officers, or by some person having authority from the legislative or executive department of government
    This was an action of debt upon a bond, originally executed by Stephen Bruce, Isaiah Doane and the»present defendant, the two former being dead before the commencement of this action.
    *On the original writ the following memorandum was [ * 192 j endorsed, viz. “ This suit is instituted for the use and benefit of Asa Nichols, of Cambridge, in the county of Middlesex.”
    
    It was agreed that Bruce was the inspector of beef for the commonwealth, that the bond declared on was conditioned for the faithful performance by the said Bruce of the duties of his said office, and that the bond was put in suit in the name of the commonwealth by Nichols, for his own use, without any authority from the legislature or the executive department, to recover a compensation out of the penalty for damages, which he, the said Nichols, alleges he had sustained by the unfaithfulness of Bruce in his said office.
    At the last November term the action was submitted, by a rule of this Court, to referees, who, at this term, report that the defendant is indebted to the commonwealth in the sum of 500 dollars.
    The defendant’s counsel now moved that the rule should be discharged, as having been entered into without authority from the commonwealth.
    The counsel for the plaintiff contended that as in probate bonds, and bonds given by sheriffs, the obligees were mere trustees for the parties injured by the breaches of the conditions, so in this case the commonwealtn was a mere trustee for all persons injured by Bruce in the execution of his office, and that any person injured might put the bond in suit without the assent of the commonwealth.
   Upon this, the Court observed that the defendant’s motion to discharge the rule must prevail; for, if proceedings on this bond were analogous to the cases mentioned, Nichols and the obligor could not refer the action, before it was determined at law that the penalty was forfeited; because judgment for the penalty must be entered for the commonwealth for the benefit of any other persons who might be injured; but afterwards, Nichols * and [ * 193 ] the obligors might refer the damages he had sustained .

In this case the penalty had not been declared forfeit; and such was the report, that judgment entered according to it would not include a judgment for the penalty in favor of the commonwealth, who was but nominally, and not in fact a party. And the rule was discharged accordingly.

Afterwards the defendant’s counsel moved that all further proceedings stay.

And it appearing by the statute directing the bond, and by the bond, that it was given for the sole use of the commonwealth, and no law having authorized any person to avail himself of a breach of the condition; and it farther appearing that the action was not commenced, and is not prosecuted by either of the public law officers, nor by any, other person having authority to prosecute the same, it was ordered by the Court that all further proceedings in this action should stay. 
      
      
        Thomas vs. Leach & al. 2 Mass. Rep. 152. — Paine vs. Ball & al. 3 Mass. Rep. 235
     
      
       1799, c. 69.
     