
    Isaac Coffin, Judge of Probate &c. versus Daniel Jones.
    In an action originally commenced in this Court, a plea in abatement cannot be filed after a general imparlance.
    An action in the name of the judge of probate, upon an administration bond, commenced, according to an indorsement on the writ, for the benefit of particular persons named in the indorsement, but who are not entitled to recover, cannot, while the indorsement remains, be pursued by the judge of probate himself as trustee of the heirs or creditors.
    Debt on an administration bond, against the only surviving obligor. On the writ was an indorsement, stating that the action was brought for the benefit of Rose Hussey and others, heirs at law of the intestate. The action was entered at November term 1824, when a rule was made by consent to refer it; which rule was afterwards, at March term 1825, discharged. At November term 1825, a plea in abatement was offered, which was objected to as being out of season, but was admitted by the presiding judge, subject to the opinion of the whole Court whether it ought to have been received. The plea prayed judgment that the writ might abate, because the action was not brought at the promotion of any creditor, &c. but at the promotion of Rose Hussey and others claim-
    
      mg to be heirs, &c., and averred that no decree of distribution, or other decree, had ever been passed by the judge of probate, ascertaining the amount, if any, which those heirs or either of them were entitled to claim, and that no order or decree had been passed by him authorizing or permitting the action to be commenced or prosecuted. Previously to offering this plea the defendant had obtained leave to plead double.
    At March term 1826, Rand and K. Whitman insisted that it was too late to plead in abatement, after a general imparlance ; 6 T. R. 369 ; 2 Maulé & Selw. 484 ; 1 Sellon’s Pract. 271 ; 1 Mass. R. 358 ; or after asking leave to plead double, or after entering into a rule of reference ; Impey’s Pract. in C. B, (6th ed.) 230 ; Com. Dig. Abatement, 123, 25 ; 3 Lev. 219. Shaw argued to the contrary, but the Court were clear, that after a general imparlance a plea in abatement could not be received. *They intimated, however, that judgment could not he rendered for the plaintiff, unless there had been a decree of distribution.
    The defendant afterwards pleaded several pleas to the action, and on one issue a verdict was returned in his favor ; and now the plaintiff moved for judgment non obstante veredicto. And after argument, the opinion of the Court was delivered by
    
      
       See M‘ Carney v. M‘ Camp, 1 Ashmead, 4; 1 Chitty on Pl. (6th Amer. ed.) 489; Gould’s Pl. p. 34, c. 2, § 17
    
   Parker C. J.

It is very clear that this action cannot be maintained for the purposes for which it purports to be instituted ; for by the indorsement its character and object are ascertained; it is for the use and benefit of the heirs of the intestate ; but by the express provision of the statute, they can have no such action without producing a decree of distribution, and proving a demand upon the administrator before the action is brought.

This seems to be admitted, but it is contended that the action may be pursued by the judge of probate to recover the amount of personal estate which came to the hands of the administrator, and that then the heirs may have scire facias to get execution for such distributive shares as may hereafter be made. But this cannot be done while the indorsement remains, for though in form it is an action for the judge of probate, it is in substance the action of the heirs, and no execution can be issued, except for the heirs, and their right to recover must exist at the time when the action is commenced. No doubt, when a breach of the condition of the probate vond has taken place, the judge of probate may maintain an "ion without interference of the heirs, but such action ought to be brought on his own mere motion as trustee of the heirs or creditors ; or if at the promotion of the heirs, legatees or creditors, it should be by the permission of the judge of probate, the heirs having no right to the bond for the purpose of putting it in suit, unless in the cases specified in the statute, without first applying to him and showing the necessity therefor ; as was decided in the case of Robbins, Judge &c. v. Hayward, 16 Mass. R. 524.

It is true in that case it is said, that when a suit is pending in the name of the judge of probate, his consent to the suit will be presumed until the contrary is shown by pleading, but that cannot be presumed in the present case, for the indorsement by the heirs raises the presumption that the suit is brought for the heirs according to the statute ; and that is a case in which execution cannot issue for the use of the judge of probate as trustee, nor in favor of the heirs, for they do not show themselves entitled.

The plaintiff therefore cannot have judgment as he has prayed. 
      
       See Paine v. Moffit, 11 Pick. 500.
     
      
       Where a suit is brought upon a probate bond, for the benefit of a legatee, without authority from the judge of probate, his subsequent approval of the suit will be sufficient to sustain it. White v. Stanwood, 4 Pick. 380.
     