
    Nathaniel Paine, Esq., Judge of Probate, versus Jonas Ball and Others.
    Where an action brought on an administration bond, in the name of the judge of probate, for the benefit of legatees is referred; although the reference is void, the report of the referees may be good prima fade evidence of the amount due to such legatees upon a bearing in chancery, after the bond is adjudged til bo forfeited.
    
      This was an action of debt, on an administration bond, brought in the name of the judge, and was endorsed thus: “ This suit is commenced for the benefit and use of Winthrop Ward, and William Ward, children and co-heirs, devisees and legatees of Jonathan Ward, late of Southborough, deceased.”
    At the last September term, in this county, the parties, by a rule of the Court, referred the action to the determination of certain referees, who now report their opinion that the penalty of the bond is forfeited, by reason of divers breaches in the performance of the condition thereof; and they award that the persons, for whose use the suit was brought, shall severally recover certain liquidated sums, in full for “ their respective shares, in equity, by way of damages, for the breaches of the condition of the obligation aforesaid, with costs.”
    
      Bigelow, for the plaintiff,
    moved the Court to accept the report, and enter judgment accordingly.
    
      F. Blake, for the defendants,
    cited the. case of Thomas, Judge, fyc., vs. Leach &f Al. 
      , as directly in point.
    
      Bigelow
    
    endeavored to distinguish this case from that cited by Blake, as, in the submission in the case at bar, the persons for whose use the suit was brought, are expressly named; and they, being alone entitled to execution, and so to the whole benefit of whatever judgment may be finally rendered in the action, may well be considered as the real parties. Suppose, in an action on such a bond as this, judgment upon pleadings is rendered against the judge, still he *may maintain another action on the same [ * 236 ] bond for the use of other parties, creditors or legatees. This shows him not a party in the usual sense of the term. He is no more than nominally a .party.
    
      
       2 Mass. Rep. 152.
    
   By the Court.

If the judge of probate were not a party to the suit, the referees have exceeded their authority, by declaring the penalty of the obligation forfeited . This award of the referees may, perhaps, be good prima facie evidence of the amount due to these parties, upon a hearing in chancery, after the obligation is regularly adjudged to be forfeited. But the point had been repeatedly determined, that a judge of probate cannot refer an action brought in his name upon an office bond, before the case in Plymouth, which has been cited by the defendants’ counsel.

Buie discharged. 
      
       Vide Coffin vs. Jones, 5 Pick. 61.—Robbins vs. Hayward, 16 Mass. 524.—In the case vi Coffin vs. Jones, where the writ was endorsed by the heirs, the Court seemed to regard the action as if it were a suit in the name of the heirs only, although it was in the name of the judge of probate, as it ought always to be. The decision cannot be supported by law or reason.—4 Mass. 74.—Glover vs. Heath, post, 252.—Ed.]
     