If the judge of probate were not a party to the suit, the referees have exceeded their authority, by declaring the penalty of the obligation forfeited (2). This award of the referees may, perhaps, be good prima facie evidence of the amount due to these parties, upon a hearing in chancery, after the obligation is regularly adjudged to be forfeited. But the point had been repeatedly determined, that a judge of probate cannot refer an action brought in his name upon an office bond, before the case in Plymouth, which has been cited by the defendants’ counsel.
Buie discharged.
Vide Coffin vs. Jones, 5 Pick. 61.—Robbins vs. Hayward, 16 Mass. 524.—In the case vi Coffin vs. Jones, where the writ was endorsed by the heirs, the Court seemed to regard the action as if it were a suit in the name of the heirs only, although it was in the name of the judge of probate, as it ought always to be. The decision cannot be supported by law or reason.—4 Mass. 74.—Glover vs. Heath, post, 252.—Ed.]