
    Benjamin Glover, Plaintiff in Error, versus William Heath, Esq., Judge of Probate.
    
      A scire facias to hear errors in a judgment, upon a probate bond, must tie served upon all the persons, for whose use the original action was brought, and whose names were endorsed upon the writ.
    In an action upon a probate bond, against an executor for not rendering his account, where the forfeiture is confessed, execution issues in favor of the judge of probate, for the use of all persons interested therein.
    This was a writ of error brought to reverse a judgment of this Court rendered at October term, A. D. 1804, against the plaintiff in error, in an action of debt upon a bond given by him, for the faithful execution of the last will and testament of Enoch Glover, deceased. In the original action, the defendant confessed the forfeiture of the bond declared on ; and upon a hearing in chancery, judgment was rendered in favor of the judge of probate for the penalty of the bond; and it was further ordered by the Court, that the said judge should have execution for eight several sums, part of the penalty forfeited, for the use of eight several legatees, named in the said last will, for whose use and benefit the original action had been brought.
    * At the last September term, upon reading the scire [ * 253 ] facias, it was found to have issued to the judge of probate alone.
    
      Morton, for the defendant in error,
    contended that the errors assigned did not apply to the judgment, which was rendered in favor of the judge of probate for the whole penalty of the bond. If an execution had issued in the name of a party not entitled to it, the party liable to suffer from the execution might sue his writ of audita querela. It would be absurd to reverse the principal judgment, because an execution had improvidently issued for a very minute portion of the sum for which that judgment was rendered.
    
      
       [Paine, Judge, &c., vs. Ball, ante, 236, and note.—Ed.]
    
   By the Court.

The names of all the persons, whose names were endorsed on the original writ, and for whose use executions were awarded, ought to have been inserted in the scire facias.

The writ was amended by consent, and the cause stood con tinned to this term. The errors assigned were, that two of the persons, for whose use execution was awarded, were dead at the time of rendering the judgment.

To the errors thus assigned the defendant in error demurred, and the plaintiff joined in demurrer.

By the Court.

In the present case, the legatees producing no

decree for the payment of their legacies, nor any judgment of any court, by which they are ascertained, the former judgment in awarding execution is erroneous, and must be reversed. But the Court here will render the judgment, which ought to have been rendered in the original suit.

T. Williams, for the plaintiff in error .

The judge of probate must have judgment for the penalty; ana as the plaintiff in error has refused to account upon oath for the personal estate of the testator, which he has received, the judge of probate must have execution for the amount of the personal estate, as it stands in the inventory, to recover the same for the use of ail persons interested therein.  