The opinion of the court was delivered by
Isham, J;This motion to dismiss was filed at the February term of the county court, at the third term after the case was entered upon the calender of 'that court. The motion is urged upon the ground that no applicant has caused his name to be indorsed as prosecutor on the writ, nor returned to, and filed in that court at the time of the return of the writ, a copy of the bond and certificate furnished by the Probate Court.
We learn from the exceptions which were allowed on trial at the August term, 1851, that at the time the suit tyas entered, the prosecutor filed with the clerk a certificate from the Court of Probate, and that a certified copy of the bond has been in the files of the case during the pendency of the suit, but not entered upon the clerk’s docket until time of trial, when the exceptions were allowed.
The Comp. Stat. p. 374, Sec. 2, provides that the Probate Court on application shall grant permission to prosecute the bond and shall furnish to the applicant a certified copy of the bond, and a certificate that permission has been granted to prosecute it, and requires of the applicant, that they be filed in court, at the return of the writ, and that he cause his name to be indorsed on the writ as the prosecutor of the same. No objection is urged, but that the certificate is good in form, but the applicant has neglected to indorse his name on the writ, and if this objection had been taken at the first term of the court, it probably would have prevailed. Rut if, as in this case, the party goes to trial on demurrer to the declaration, or has a trial on the merits, and the case passes to subsequent terms of the court, it is a waiver of the objection, and the party is too late in filing this motion. And in relation to the certificate, the prosecutor has done all he personally was required to do in relation to filing the bond and certificate, as it was lodged with the clerk when the case was entered in court, and nothing remained but the act of the clerk in making his entry thereon. We think that lodging a certified copy with the clerk at that time by the prosecutor, was sufficient to give him all the rights of a prosecutor under the act, and that the suit cannot be defeated by such neglect of the clerk.
The motion to dismiss is overruled and the case remanded.