
    Joshua Thomas, Esq., Judge of Probate, versus Asa Leach & Al.
    An action in the name of a judge of probate on an administration bond cannot be referred.
    This was an action of debt on a bond given by the defendants to the judge of probate, conditioned for the faithful administration of the estate of Ebenezer Leach, deceased, of which the defendant, Asa Leach, was administrator. The writ was endorsed thus: “ This action is brought by Jonathan Ames, of Bridgewater, to recover the sum of 172 dollars 17 cents, reported to be due him by commissioners of insolvency, duly appointed by the judge of probate, on <he estate of Ebenezer Leach, deceased, said Asa Leach having administered on said estate, and neglected to settle his account of administration within six months after the final report oí said commissioners.”
    
      
      Padelford for the plaintiff.
    
      W. Baylies for the defendant.
   At a former term, the parties had, by a rule of Court, submitted this action to referees, who now reported that the plaintiff, in his said capacity, recover of the defendants 18 dollars 53 cents for the benefit of Jonathan Ames, which shall be in full of all demands against said Asa Leach, as administrator on the estate of Ebenezer Leach. And they further awarded that the plaintiff should pay costs.

*Upon the report being read, the Court ordered the [ * 153 ] rule to be discharged, as having been entered into by parties who were by law not competent thereto; and the Court further observed, that the judge of probate is a mere trustee of an administration bond for all the next of kin and creditors; and he cannot submit their rights to reference or arbitration. When a suit is brought on the bond for the benefit of the party endorsing the writ, and who is entitled to have execution for his own use, and the penalty is declared forfeited, the endorser and defendant may submit to referees to report the sum for which the execution shall issue for the use of the endorser, who is a party to the submission; in which case judgment is rendered for the penalty for the judge in his official capacity, and execution awarded according to the íeport. 
      
      
         Paine vs. Ball & Al. 3 Mass. Rep. 235. — Sed vide Commonwealth vs. Hatch, 5 Mass. Rep. 191. — Skinner vs. Phipps & Al. 4 Mass. Rep 974.
     