The bond in suit, being a common law bond, is necessarily sued in the name of the person who was judge of probate when it was given, instead of in the name of his successor, is destitute of power to enforce statutory penalties, but is available for the enforcement of all legal obligations assumed by the makers, in the same manner as if it were a statutory bond. Cleaves v. Dockray, 67 Maine, 118; Schoul, Ex. § 143, and cases.
When this case was presented to the court before (78 Maine, 139), the writ charged that the action was prosecuted in John A. Waterman’s name by the administrator, de bonis non, of the estate of Dockray. That was held not maintainable because the administrator had no adjudged claim of his own to recover, and no authority from the judge of probate to prosecute the action in behalf of the estate generally. The court say that Ammi E. Mitchell, a creditor, might have, prosecuted the action, having had leave to do so, and that the plaintiff might amend his writ and declaration on payment of costs. The costs were paid by the plaintiff, and accepted by the defendants.
How to amend ? If the writ was not a valid writ, was it not to amend so as to make it valid? If the decision was that the action could only be prosecuted by the creditor, Mitchell, was it not to so amend as to make Mitchell the prosecutor ? Have not the defendants voluntarily received a consideration for allowing an amendment that will give the proceeding full force and efficacy? Were the costs received to allow merely a useless amendment? In our opinion, the plaintiff is entitled to amend to any extent necessary to make his pleadings sufficient.
But it will be a change of parties and of the cause of action, is argued by the adverse party. We think not, in any substantial sense. The real parties will be the same after as before amendment ; the plaintiff was and still will be John A. Waterman. In his name the judgment must be recovered for all the creditors,— and in his name alone will execution be issued. The original action was not commenced under section 10 of c. 72, R. S. No particular claim was sought to be recovered. The attempt was to sue the bond under section 16 for the estate — the benefit *155of all. The essential party is John A. Waterman, the obligee in trust of all persons interested in the bond.
Nor is the cause of action changed in the least by the amendment. The cause of action is the same whether the suit be promoted by one or another person. It is essentially the same thing to the defendants, whoever the secondary parties may be. In any case, the cause of action is the bond and a forfeiture under it. When a judgment is recovered, the judge of probate assigns it to the new administrator to collect for the benefit of the estate generally. R. S., c. 72, § 18.
In the earlier practice such suits were brought by the judge of probate in his own name, upon the indemnity of some interested party to save him harmless of costs. In the present Massachusetts practice, the requirement is that the writ shall be indorsed " by the person for whose benefit or at whose request the suit is brought, or by his attorney.” In Bennett v. Woodman, 116 Mass. 518, it is said: "The judge of the probate court, and not the indorser of the writ, represents the rights upon which the action is to be maintained, if at all,” in an action for the general benefit of the estate. It was there held to be immaterial that the person upon whose representation the action was brought would receive no benefit from a recovery on the bond. The party permitted to commence the action is merely a promoter or prosecutor, a person who volunteers to carry on the suit, at his own risk and expense, for the common good. He is not the party — he merely supports the party. In an action under section 10, commenced without leave of court, it would be different.
It has never been decided that an amendment such as is offered here is inadmissible. In Potter v. Cummings, 18 Maine, 55, an amendment of the kind was not rejected. In Patten v. Tallman, 27 Maine, 68, it was held that "such an amendment could be allowed only on terms.” In McFadden v. Hewett, 78 Maine 24, an amendment of as much substance as this was allowed. Bear in mind that our statutes now allow, on payment of costs, a change of parties, by way of amendment, by either *156lessening or increasing the number of either plaintiffs or defendants.
It appears from the facts stated in the proposed amendment, that a large amount of unadministered property has remained in the principal defendant’s hands for more than ten years, and that creditors have been thus far baffled, in their attempts to recover their claims, by her maladministration of the estate. The liability under her bond seems to be doubly fixed. First, by neglecting to acoount when required to do so,— secondly, by a failure to turn over the property to her successor when demanded of her. Escape from liability altogether, a consequence that might ensue if an amendment be not allowable, would be a stigma on the law itself, occasioned by the remissness of some of its servants or officers. That need not be.
Perhaps it would leave the writ and declaration more consistent to strike Pierce’s name therefrom, although not necessary to do so, and allege that the action is prosecuted by Ammi It. Mitchell, a party interested, for the benefit of the estate, he having been expressly authorized to do so by the judge of probate.
At all events, the plaintiff should be allowed to make the amendment asked for, or any other which would not be a substantial departure from the limit indicated.
Exceptions sustained. Motion of defendant overruled. Amendment allowed.
Walton, Virgin, Libbey, Emery and Haskell, JJ., concurred.