This action, on a guardian’s bond, was designed to be brought under section 10, ch. 72, R. S. But it was not originally averred in the writ that the interest of the persons suing the bond, had been specifically ascertained by a decree of the judge of probate, as required by that section. The plaintiffs were allowed, upon terms, to amend by inserting the omitted words., The defendant contends that the amendment was not admissible,— that it introduces a new cause of action and in a sense new parties. We think the amendment merely allows a missing link to be supplied in the facts alleged, and that the objection to it should not be sustained.
The plaintiffs, before amendment having’ too slender an averment, after amendment have too much. In the flurry of nisi prim the amendment was over-loaded. It not only added the missing words, but further added an averment that the plaintiffs (in interest) had been expressly authorized by the judge of probate to commence the action for their benefit, and for the benefit of the estate. These superfluous words were borrowed *28from section 16, of the chapter referred to, and would be more appropriate to an action brought under conditions not applying; to this case. But the words are harmless and may be rejected as surplusage. Under seetiou 10 the action is instituted without the consent of the judge, and under section 16 with his consent. It must be harmless to allege the judge’s consent when it matters not whether he consents or not. "The estate” can be no other than the estate belonging to the heirs, and the action really enures to the benefit of the heirs and their estate, although instituted under section 10 and not section 16.
An additional defense is that the bond declared upon is not a statute bond — that it contains provisions not required by law. The provision in the bond which seems to be the most of a departure from the statutory form, is the requirement that the guardian should put out and secure the proceeds of sale (of the real estate) on interest for the benefit of the minors. But this imposed no new obligation. We think the position taken by plaintiff’s counsel correctly answers this objection. While the statutory form of bond did not require such a thing, the law did require it. The bond was given when part 6 of section 10, ch. 112, R. S., of 1841, was in force. The later form of bond requires the principal to obey the law appertaining to the duties undertaken by him. The older form, and this bond was of a style formerly used, contained more specification of such duties. The other obligations named in the bond were substantially what the law imposed. The opinion, in the case of Cleaves v. Dockray, 67 Maine, 118, contains illustrations of harmless departures from the strict formalities of probate bonds, and the present case falls within the principle there illustrated. The law required certain duties of the guardian who gave the bond now in suit — and his bond required no more. No new or additional burden was put upon him.
Exceptions overruled.
Walton, Virgin, Libbey, Foster and Haskell, JJ., concurred.