At a former term, the parties had, by a rule of Court, submitted this action to referees, who now reported that the plaintiff, in his said capacity, recover of the defendants 18 dollars 53 cents for the benefit of Jonathan Ames, which shall be in full of all demands against said Asa Leach, as administrator on the estate of Ebenezer Leach. And they further awarded that the plaintiff should pay costs.
*Upon the report being read, the Court ordered the [ * 153 ] rule to be discharged, as having been entered into by parties who were by law not competent thereto; and the Court further observed, that the judge of probate is a mere trustee of an administration bond for all the next of kin and creditors; and he cannot submit their rights to reference or arbitration. When a suit is brought on the bond for the benefit of the party endorsing the writ, and who is entitled to have execution for his own use, and the penalty is declared forfeited, the endorser and defendant may submit to referees to report the sum for which the execution shall issue for the use of the endorser, who is a party to the submission; in which case judgment is rendered for the penalty for the judge in his official capacity, and execution awarded according to the íeport. (a)
Paine vs. Ball & Al. 3 Mass. Rep. 235. — Sed vide Commonwealth vs. Hatch, 5 Mass. Rep. 191. — Skinner vs. Phipps & Al. 4 Mass. Rep 974.