
    Daniel A. White, Esq., Judge, &c., versus Francis Quarles.
    Where an action is instituted by a judge of probate, upon a bond given to his predecessor in office, the Court will presume it to be a probate bond within the provision of the statute of 1786, c. 55, § 3, requiring such actions to be commenced in this Court; and such actions, if commenced in the Common Pleas, are not to be sustained.
    The plaintiff, in an action originally commenced in the Common Pleas, declares in debt upon a bond dated November 13, 1806, made by the defendant, and two others since deceased, payable to Samuel Holten, Esq., then judge of probate for this county, and to his successors in said office; and avers that he is the lawful successor of the said Holten in the said office. The condition of the bond (a copy of which came up in the case) reciting that the Supreme Judicial Court, on the petition of John Fullington, the principal in the bond, had authorized him, as guardian of one Mary Brown, a minor, to sell certain real estate of the said minor, was, that he should observe and comply with the directions of the law concerning the sale of real estate by executors, &c., and shoo'd account for the proceeds, &c., agreeable to law.
    
      Issue being joined on the plea of non est factum, and a verdict returned for the plaintiff at the last April term at Ipszoich, the defendant moved in arrest of judgment, because the action was brought in the Circuit Court of Common Pleas ; whereas, by law, it ought to have been brought originally in this Court.
    
      Saltonstall,
    
    in support of the motion, relied on Stat. 1783, c. 46, ■§> 3, by which it is provided that this Court, as the Supreme Court of Probate, shall have cognizance in the first instance of all matters wherein the judge of probate is a party or interested ; and Stat. 1786, c. * 55, § 3, by which it is enacted that all suits thereafter brought in the name of any probate judge upon a probate bond of any kind, shall be originally commenced in the Supreme Judicial Court held within or for the county unto which the said probate judges respectively belong.
    
      Prince, for the plaintiff,
    contended that this was not a probate bond, within the intention of the statute, which contemplated bonds given by executors on proving a will, and by administrators on receiving letters of administration. This bond, to account for the proceeds of the sale of land, was given ■ to the judge merely as trustee, and in pursuance of the special order of this Court, as a condition of authorizing the sale.
    But if the objection is sufficient, it comes too late. It should have been made in the court below, by a plea in abatement, at the return of the writ, and before any imparlance. By pleading in chief, the defendant has waived the objection.
    
      Saltonstall, in reply. This was properly a probate bond, required by Stat. 1783, c. 32, and was given officially to the judge of probate, or his successor could have no action upon it. It was not necessary to plead this matter; jurisdiction cannot be conferred, by consent. 
    
    
      
      
        Com. Dig., Estoppel, E, 1— 5 Co. 30—10 Co. 65. — 3 Wils. 382.-Salk. 201 - -11 Mass. Rep. 411.
    
   Per Curiam.

It does not appear, by any thing on the record',

that the bond declared on is, in a legal sense, a probate bond ; so that a want of jurisdiction in the Circuit Court of Common Pleas does not appear in the proceedings.

But it appearing in the declaration that the bond was given to Samuel Holten, Esq., judge of probate, &c., and to his successors m office, and the action being brought in the name of the present judge, as his successor, if it is not a probate bond, the action was not rightly brought; because the present plaintiff would, in such case, have no legal interest in the bond. The action must there fore be dismissed.  