This is an application to a court of equity to enjoin the respondent against the further prosecution of an action at law brought by him in the name of ¿the judge of probate on a probate bond given by the petitioners as administrators of the estate of James Humphrey, senior. The breach assigned in that action is the non-payment of a note of $2,120 reported by the commissioners on the estate as a debt due from the estate to the respondent Grant, by reason of a guarantee of the note by the said James Humphrey, sen., indorsed upon it. No question is made but that the note was due at the time it was passed upon by the commissioners; nor can there be any question, upon the facts stated in the motion, that the note was after-wards paid, though that fact was not known to the petitioners until after the report of the commissioners, allowing the claim, *78had been made, and had been accepted by the court of probate, and the time for taking out an appeal from the report had expired. The note had in fact been taken up and destroyed by Lewis R. Boyd and James Humphrey, Jr., the principal debtors; the said James Humphrey, Sen., being no otherwise connected with the note than as guarantor of the same.
The commissioners not being informed of the payment of the note, which occurred after they had passed upon the claim but before their report was actually returned, as a matter of course reported the claim as justly due from the estate, and the petitioners, having in like manner no knowledge of the payment, nor any occasion to inquire how the fact was, supposing of course that the debt remained as it was when it was allowed, took no measures to have the report corrected by the court of probate or to have it reviewed on appeal to the superior court.
Now, since the respondent has been paid his note by a new note of the principal debtors, and which he accepted by giving up to them the old note as cancelled, it is clear that he can not be allowed to get payment a second time, by suit on the probate bond, or in any other mode ; and the only question is, how shall the petitioners avail themselves of this their clear defense in equity. Shall they defend in the action at law on the probate bond ? or shall they ask the judge of probate to open the commissioners’ report ? or can the action at law be arrested by injunction ? We think the last an appropriate remedy, and we do not perceive any well grounded objection to it. The commissioners having allowed the claim and reported it as justly due,-there may be difficulty in resisting the payment of it on the probate bond. If the claim is justly due, the non-payment of it is a breach of the bond, and it would seem to be necessary in some way to get the report amended to enable the petitioners to make defense in the suit on the bond. But can this be done ? Even if the court of probate could open the commission to let in claims upon the estate not before presented or known, we are not clear that it could be opened to re-try claims in order to get them disallowed as having been improperly allowed by the commissioners. *79We none of us know of any such practice, and with the view which we take of the statute are not disposed now unnecessarily to introduce a new practice on the subject, there being as we conceive another certain and sufficient remedy. We have carefully considered the suggestions made by the respondent’s counsel, and are quite aware that the tendency of our decisions of late is to leave the settlement of estates as far as possible to the court of probate; but we can not see, in the matter before us, any clear, adequate and certain remedy, other than the one asked for in the petition.
It was said on the trial that the petitioners had outstaid their time, and were chargeable with laches, and ought not now to receive favor from the court. We do not so understand their position. The petitioners had no knowledge or suspicion that the note had been paid after the claim was allowed by the commissioners; nor are they chargeable with neglect of official duty in not seeking for knowledge. They were aware that the claim had been properly presented and allowed, and of course was to be paid by them, and that they were to have a remedy over ; but the principal debtor in the mean time interposed and took up the note, and thereby ceased to be liable further upon it to any one; and surely the respondent had no right after this to remain silent towards these petitioners, who he knew represented a mere surety. Of all men he knew what had been done, and on every principle of justice and honor lie can not be permitted, after the note has been paid and cancelled, to resist this application for relief.
We advise judgment for the petitioners.
In this opinion the other judges concurred.