delivered the opinion of the Court as follows. Several objections are made to’each of the pleas in bar. — ■ The second plea is founded on an alleged mistake in the pro<, bate-account settled by Joshua Webb, one of the administrators, by means of which he was made chargeable for a much larger amount than was actually due. — The answer to this is, that an appeal should have been claimed from the decree of the Judge of Probate, to this Court, as the Supreme Court of Probate. — As none was claimed, the decree passed by that Court on that occasion is in full force — and this Court, sitting as a Court of common law, cannot examine it, or the accounts on which it is founded. This pica is therefore bad.
As to the third plea, were there no other objection against it it is bad, as it admits a forfeiture of the bond at law;— because the averment in it is, that the sureties have paid away to heirs and creditors the sum of nine thousand, seven hundred and eight dollars and eighty-eight cents, being the whole penalty of the bond excepting the sum of two hundred and ninety-one dollars and twelve cents. — As the sureties are answerable to the extent of the penalty at least, the fact pleaded, if true, can only be good by way of defence in chancery.
The fourth plea is bad for. the same reasons that we have pronounced the second to be so.
The averment in the fifth plea is, that in the account settled in the Probate Court by Joshua Webb, one of the administrators, on which the decree was passed, he was “ fraudulently and col- “ lusively charged with divers sums of money, of great amount, viz. — to the amount of ten thousand dollars, which were not' “ due from said Joshua to said estate ;” and for which his sureties “are not liable.” — But there is nothing in this plea which *261Implicates any one in particular in the alleged fraud and colt |usion ; certainly nothing shewing or leading us to suspect that, the Judge of Probate, or any person or persons for whose use and benefit this action is commenced and prosecuted, were parties to the fraud. There are other defects in the plea which it |s unnecessary to examine. This therefore must share the fate pi the three preceding pleas.
Pleas in bar adjudged insufficient.