The opinion of the court was delivered by
Ross, J.
This is an action, under the statute on a bond given by the defendants to the Probate Court for the district of Randolph, for the faithful performance by Almou Brainard, of the duties of administrator on the estate of Austin Brainard. On demurrer, the County Court adjudged that the declaration was sufficient, .and rendered judgment against the defendants for the amount of the penalty named in the bond. This judgment must stand if the declaration sets forth sufficient facts to sustain it. It [624]*624is conceded that the bond, and its breach by the defendant Almon Brainard, are sufficiently stated in the declaration to sustain the judgment, if the case can be prosecuted by the Probate Court, of its own motion. The statute prescribes the manner in which such bonds shall be taken and prosecuted. Gen. Sts. c. 60, ss. 1, 2. By the provisions of these sections, the bond, in such cases, is to be taken in the name of the Probate Court for the benefit of such persons as may sustain damages by the failure of the principal in the bond to perform its conditions, and is to be put in suit on permission granted by the Probate Court to some person as prosecutor, claiming to have been injured by a breach of the conditions of the bond. From the various provisions of the second section of the statuté, requiring that the prosecutor shall give a bond to prosecute the suit to effect, and to pay costs “ in case he should fail to recover”; that lie shall indorse his name on the writ as prosecutor of the same ; that the declaration on the bond shall set forth the breaches of the conditions on which the prosecutor relies ; that he may recover and have execution for costs in his own name if the defendants shall unsuccessfully resist the preliminary judgment for the penalty of the bond; and that after the preliminary judgment in favor of the Probate Court for the penalty of the bond, the action shall proceed and be prosecuted on the breaches assigned, in the name of the prosecutor, and if he’ prevail, he shall have judgment in his own name for his damages and costs, — it is evident that the prosecutor must be considered the real plaintiff, and that the Probate Court cannot, per se, move in the prosecution of such bonds. Although the preliminary judgment is in favor of the Probate Court for the penalty named in the bond, such judgment is for the benefit of the prosecutor, and of all others who may be able, to show that they have been injured by a breach of the conditions of the bond. Obtaining the preliminary judgment in favor of the Probate Court for the pen-. alty of t.he bond, is one step which the prosecutor must take, and be entitled to take, to enable him to recover the damages which have resulted to him from the alleged breach of the conditions of the bond. The prosecutor, and not the Probate Court, must take, and be entitled to take, this step. Can he be allowed to take this [625]*625step, unless the facts stated in bis declaration and admitted by the demurrer, show that he holds such relations to the alleged breaches of the conditions of the bond that he may have been injured thereby ? This is the real question presented for consideration.
The alleged breach of the conditions of the bond is, the failure of the ancillary administrator, Almon Brainard, to pay, on the order of the Probate Court, to the principal administrator, who resides in Wisconsin, the sum found in his hands on the settlement of his account with the estate. Do the facts admitted by the demurrer, place the prosecutor in such relations to the bond and its alleged breach that he may be entitled to damages, or may have been injured by such breach ? It is to be remarked that the permission granted to him by the Probate Court to prosecute the bond, is not conclusive on this question. The statute is mandatory upon the Probate Court to grant such permission to any one claiming to have been injured by a breach of the conditions of the bond, if he shall give a bond to the satisfaction of the court, to prosecute the suit to effect and pay such costs as shall be adjudged against him in case he fails to recover. The Probate Court, in granting such permission, except in determining the amount and sufficiency of the bond required from the prosecutor, acts in a ministerial rather than in a judicial capacity. Hence, the facts stated in the prosecutor’s declaration must bo considered, in order to determine whether he may have been injured by the conceded breach of the conditions of the bond in suit. The prosecutor is not the principal administrator to whom the Probate Court has ordered the principal in the bond to pay the sum found in his hands on the settlement of his administration account. He alleges that he was a creditor of the estate in the jurisdiction of the principal administration, and that he had there proved his debt. He docs not allege that his claim remains unpaid, nor that the funds in the hands of the principal administrator are insufficient to pay it, except inferentially. He does not state that the court in Wisconsin has ever ordered the principal administrator to pay his claim. There is no fact stated in the declaration that shows that the prosecutor would have received, or been entitled [626]*626to receive, one dollar, much less the whole sum, found in Almon Brainard’s hands on the settlement of his administration account, and which he was ordered to pay over to the principal administrator, if that order had been complied with. He does not claim that he has ever become a creditor of the estate in the administration thereof in this state, but rather the reverse. He alleges no facts, and makes no averments, that place him in any fixed legal relations to the administrator in this state, for the faithful performance of whose duties the bond in suit was given. He alleges no facts that give him any standing in the Probate Court in whose name the bond was taken. On his own showing, he has no right to call 'Upon that court to make any order in his behalf in regard to the administration of the estate here ; and that court would have no power to make any such order on his application therefor. As to the administration of the estate in this state, he stands as an outsider, and he comes in to prosecute the suit as a volunteer. No amendment or enlargement of the facts stated in the declaration, would bring the prosecutor into such legal relations to the administration of the estate in this state that he could take advantage of, or be directly injured by, a breach of the conditions of the bond in suit. By the statute, all such bonds are taken and prosecuted " for the benefit of those who may be injured by the breach of their condition.” The prosecutor does not bring himself within this class of persons. On the facts stated in the declaration aud admitted by the demurrer, he sustains no such legal relations to the alleged breach of the conditions of the bond, that a preliminary judgment for the penalty in favor of the Probate Conrt could be of any avail to him. Hence, he has no right inhering in himself, or growing out of his relations to the administration of the estate in this stare, to have such preliminary judgment rendered. As already remarked, the Probate Court cannot, voluntarily, move in the prosecution of the defendants for a breach of the conditions of their bond, and have judgment rendered in its favor for the penalty named in the bond. That court has no right in itself to have such a judgment rendered. If such right is not in the Probate Court, it must be' in the prosecutor ; but, as we have seen, in the prosecutor only because he sustains such legal rela[627]
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The opinion of the court was delivered by
Ross, J.
This is an action, under the statute on a bond given by the defendants to the Probate Court for the district of Randolph, for the faithful performance by Almou Brainard, of the duties of administrator on the estate of Austin Brainard. On demurrer, the County Court adjudged that the declaration was sufficient, .and rendered judgment against the defendants for the amount of the penalty named in the bond. This judgment must stand if the declaration sets forth sufficient facts to sustain it. It [624]*624is conceded that the bond, and its breach by the defendant Almon Brainard, are sufficiently stated in the declaration to sustain the judgment, if the case can be prosecuted by the Probate Court, of its own motion. The statute prescribes the manner in which such bonds shall be taken and prosecuted. Gen. Sts. c. 60, ss. 1, 2. By the provisions of these sections, the bond, in such cases, is to be taken in the name of the Probate Court for the benefit of such persons as may sustain damages by the failure of the principal in the bond to perform its conditions, and is to be put in suit on permission granted by the Probate Court to some person as prosecutor, claiming to have been injured by a breach of the conditions of the bond. From the various provisions of the second section of the statuté, requiring that the prosecutor shall give a bond to prosecute the suit to effect, and to pay costs “ in case he should fail to recover”; that lie shall indorse his name on the writ as prosecutor of the same ; that the declaration on the bond shall set forth the breaches of the conditions on which the prosecutor relies ; that he may recover and have execution for costs in his own name if the defendants shall unsuccessfully resist the preliminary judgment for the penalty of the bond; and that after the preliminary judgment in favor of the Probate Court for the penalty of the bond, the action shall proceed and be prosecuted on the breaches assigned, in the name of the prosecutor, and if he’ prevail, he shall have judgment in his own name for his damages and costs, — it is evident that the prosecutor must be considered the real plaintiff, and that the Probate Court cannot, per se, move in the prosecution of such bonds. Although the preliminary judgment is in favor of the Probate Court for the penalty named in the bond, such judgment is for the benefit of the prosecutor, and of all others who may be able, to show that they have been injured by a breach of the conditions of the bond. Obtaining the preliminary judgment in favor of the Probate Court for the pen-. alty of t.he bond, is one step which the prosecutor must take, and be entitled to take, to enable him to recover the damages which have resulted to him from the alleged breach of the conditions of the bond. The prosecutor, and not the Probate Court, must take, and be entitled to take, this step. Can he be allowed to take this [625]*625step, unless the facts stated in bis declaration and admitted by the demurrer, show that he holds such relations to the alleged breaches of the conditions of the bond that he may have been injured thereby ? This is the real question presented for consideration.
The alleged breach of the conditions of the bond is, the failure of the ancillary administrator, Almon Brainard, to pay, on the order of the Probate Court, to the principal administrator, who resides in Wisconsin, the sum found in his hands on the settlement of his account with the estate. Do the facts admitted by the demurrer, place the prosecutor in such relations to the bond and its alleged breach that he may be entitled to damages, or may have been injured by such breach ? It is to be remarked that the permission granted to him by the Probate Court to prosecute the bond, is not conclusive on this question. The statute is mandatory upon the Probate Court to grant such permission to any one claiming to have been injured by a breach of the conditions of the bond, if he shall give a bond to the satisfaction of the court, to prosecute the suit to effect and pay such costs as shall be adjudged against him in case he fails to recover. The Probate Court, in granting such permission, except in determining the amount and sufficiency of the bond required from the prosecutor, acts in a ministerial rather than in a judicial capacity. Hence, the facts stated in the prosecutor’s declaration must bo considered, in order to determine whether he may have been injured by the conceded breach of the conditions of the bond in suit. The prosecutor is not the principal administrator to whom the Probate Court has ordered the principal in the bond to pay the sum found in his hands on the settlement of his administration account. He alleges that he was a creditor of the estate in the jurisdiction of the principal administration, and that he had there proved his debt. He docs not allege that his claim remains unpaid, nor that the funds in the hands of the principal administrator are insufficient to pay it, except inferentially. He does not state that the court in Wisconsin has ever ordered the principal administrator to pay his claim. There is no fact stated in the declaration that shows that the prosecutor would have received, or been entitled [626]*626to receive, one dollar, much less the whole sum, found in Almon Brainard’s hands on the settlement of his administration account, and which he was ordered to pay over to the principal administrator, if that order had been complied with. He does not claim that he has ever become a creditor of the estate in the administration thereof in this state, but rather the reverse. He alleges no facts, and makes no averments, that place him in any fixed legal relations to the administrator in this state, for the faithful performance of whose duties the bond in suit was given. He alleges no facts that give him any standing in the Probate Court in whose name the bond was taken. On his own showing, he has no right to call 'Upon that court to make any order in his behalf in regard to the administration of the estate here ; and that court would have no power to make any such order on his application therefor. As to the administration of the estate in this state, he stands as an outsider, and he comes in to prosecute the suit as a volunteer. No amendment or enlargement of the facts stated in the declaration, would bring the prosecutor into such legal relations to the administration of the estate in this state that he could take advantage of, or be directly injured by, a breach of the conditions of the bond in suit. By the statute, all such bonds are taken and prosecuted " for the benefit of those who may be injured by the breach of their condition.” The prosecutor does not bring himself within this class of persons. On the facts stated in the declaration aud admitted by the demurrer, he sustains no such legal relations to the alleged breach of the conditions of the bond, that a preliminary judgment for the penalty in favor of the Probate Conrt could be of any avail to him. Hence, he has no right inhering in himself, or growing out of his relations to the administration of the estate in this stare, to have such preliminary judgment rendered. As already remarked, the Probate Court cannot, voluntarily, move in the prosecution of the defendants for a breach of the conditions of their bond, and have judgment rendered in its favor for the penalty named in the bond. That court has no right in itself to have such a judgment rendered. If such right is not in the Probate Court, it must be' in the prosecutor ; but, as we have seen, in the prosecutor only because he sustains such legal rela[627]*627tions to.the ancillary administration that he may have been injured-by the bieach of the conditions of the bond, and for that reason has the right to prosecute the same, to enable him to obtain compensation for the injury he has thereby sustained. As on the facts alleged he has failed to show that he sustains such legal relations to the administration of the estate in this state that he has, or can have, sustained - any injury from the alleged breach of the conditions of the bond, he has no right to move in its prosecution. The right to prosecute is not given to any volunteer, but only to a party who may have been injured, and to enable him to enforce compensation for such injury. The defendants have the right to say that a judgment for the penalty of the bond shall not be rendered against them, except at the instance of one who shows by his declaration that he may have been injured by the breach of its conditions within the meaning of the statute. For the reasons already stated, the judgment of the County Court must be reversed, and the declaration must be adjudged insufficient.
If this court had affirmed the judgment of the County Court, it could not have rendered final judgment in the case, inasmuch as the damages, if any, resulting to the prosecutor from the alleged breach of the bond, had not been ascertained. Ordinarily, this court would have treated the case as prematurely brought into it, and have dismissed it as a misentry. As the case has boon fully argued, and as the views of this court are such as will finally determine the case, we have thought best to make it an exception to the general rule, but we do not wish to be understood as relaxing the rule. Besides, the proceedings under the statute in this class of cases are somewhat peculiar. There are two judgments in this class of cases, the latter of which does not necessarily or ordinarily vacate the former. The preliminary judgment in favor of the Probate Court, would stand, though the final judgment might be against the prosecutor. Generally, a final judgment in favor of the defendant, vacates all preliminary judgments in favor of the plaintiff; so that in such cases, an exception taken by the defendant to the rendition of the preliminary judgment, need not be insisted on by him. In the case at bar, if the defendants had de[628]*628feated the prosecutor'on the final judgment, they could have relieved themselves from the validity of the preliminary judgment in favor of the Probate Court, only by insisting on their exceptions. Hence, in this particular case nothing would be saved to the parties or the court by enforcing the general rule.
The defendants, by the demurrer, having admitted the execution of the bond, and a breach of its conditions, are not entitled to a general judgment in their favor, fiuch a judgment might embarrass a future suit upon the bond for the same breach, by a prosecutor entitled to relief by prosecuting the same. They have the right to such judgment only as will end the right of the present prosecutor to pursue them on the facts alleged in the declaration. A nonsuit is effectual for that purpose, and protects the rights of all parties who may be entitled to prosecute the bond for this particular breach.
Judgment reversed, the declaration adjudged insufficient, and judgment that the prosecutor become nonsuit.