
    Daniel A. White, Judge &c., versus Joseph Stanwood et al.
    
    
      Nov. 8th.
    
    If a judge of probate grants leave to bring an action upon a probate bond, for the benefit of an individual, upon his filing a bond to indemnify the judge against the costs of the suit, and the action is brought before such bond is filed, the judge may afterwards receive such bond, and it will relate back to the commencement of the action
    In an action on a probate bond brought for the benefit of a legatee, it is too late for the defendant, after a confession of the forfeiture of the bond, to object that the action will not lie, because the legatee’s demand had not been reduced to a certainty by a judgment of court or otherwise.
    This was an action of debt against the principals and sureties in a bond given to the judge of probate, conditioned that the principals should well and faithfully administer according to the will of Joseph Stanwood their father. The action was brought by leave of the judge of probate, for the benefit of the children of the testator’s daughter, Mary Dins-more, upon the following bequest: — “I further give and bequeath to the children of my said daughter Mary, 2000 dollars, to be paid to the said Mary and her husband, &c., within one year next after my decease,” &c. At November term 1835, the defendants acknowledged the forfeiture of the bond, and prayed to be heard in chancery, and the parties agreed upon S. Tenney as auditor.
    
      Gerrish, for the defendants,
    contended that an action cannot be maintained upon the bond for the benefit of a legatee, until after the amount due has been made certain by a judgment of court, or in some other form; notwithstanding that legatees are not mentioned in St. 1786, c. 55, § 2. Robbins v. Hayward, 16 Mass. R. 524.
    Leave to bring the action was granted, upon condition that Mary Dinsmore should give a bond to indemnify the judge of probate against all expenses and costs that might arise in the suit. No such bond has been given, and the action is therefore to be considered as if it were brought without any license, and it cannot be sustained.
    
      Moseley, contra,
    
    cited to the first point, Dawes v. Swan, 4 Mass. R. 208; Prescott v Parker, 14 Mass. R. 428.
    
      Nov. 11th.
   The Cour suggested that the bond of indemnity might yet be filed, if the judge of probate were willing to receive it; and afterwards, upon the counsel’s producing the judge’s certificate that the bond had been filed, they said that whether the bond were filed or not, was an affair of the judge of probate ; that if he was willing to have the action brought before it was filed, it did not prejudice the defendants ; and that the bond being now filed, it might relate back to the commencement of the action.

And as to the other objection, they said it came too late, the defendants having confessed the forfeiture of their bond. 
      
       See Judge of Probate v. Emery, 6 N. Hamp. R. 142.
     