The opinion of the court was delivered by
Royce, Ch. J.This cause was heard on general demurrer *310to the declaration. The application made to the Probate Court for leave to prosecute was made by the Green Hill Cemetery Association, and leave was granted to that association to prosecute the bond given by the defendants; and a copy of the order made by the Probate Court and bond were filed in the County Court. The writ was endorsed “ Green Hill Cemetery Association, prosecutor; A. G. Stone, administrator of E. W. Kent, prosecutor.” After the demurrer was filed the court ordered that the name of A. G. Stone, administrator of Kent, be stricken from the files as prosecutor.
It is claimed that the endorsement of Stone’s name upon the writ made him a party so that the order made by the court changed the parties to the action. R. L. s. 2303 provides that any person claiming to be injured by a breach of the conditions of a bond may apply to the Probate Court to which such bond is taken for leave to put the same in suit; and shall thereupon give a bond to the adverse party to the satisfaction of the court, with a condition that he will prosecute the suit to effect and pay the costs which are adjudged against him, if he fails to recover. Upon compliance with these requirements, it is made the duty of the Probate Court to grant the leave prayed for and to furnish the applicant with a copy of the bond and a certificate that leave has been granted, and the name and residence of the applicant. The applicant is required to cause his name to be endorsed on the writ, and is to be deemed the prosecutor of the bond. The statute has thus defined the qualifications of those who are entitled to appear and be treated as prosecutors.
The simple endorsement of the name of a party as prosecutor upon the writ, does not constitute him a prosecutor. In Probate Court v. Strong, 24 Vt. 146, the prosecutor had neglected to have his name endorsed upon the writ, and a motion to dismiss was made for that reason. The court say that if the objection had been seasonably made, it would *311have probably prevailed; but that the prosecutor having done all that the law required, by seasonably filing a certified copy of the leave given him to prosecute, he had all the rights of a prosecutor under the act. The acts of the prosecutor preliminary to the suing out of the writ were made the test of his right.
Stone, as administrator of Kent, had never made application for, nor been granted, leave to prosecute, and had not given a bond to the adverse party. He had no right to cause his name to be endorsed on the writ as a prosecutor; and the court had the undoubted right to disregard his claim to appear as a prosecutor and to order his name to be stricken from the record.
It is further claimed that the declaration does not. state any cause of action for which a recovery can be had in the name of the prosecutor. The breach of the bond alleged in the declaration is the neglect of the defendant Rebecca Hull, as administratrix of Alfred Hull, to pay a claim of §236 that was allowed by the commissioners upon Alfred Hull’s estate in favor of Elias W. Kent, treasurer, collector, and committee; ancl it is averred that the said Kent was treasurer, collector, and committee of Green Hill Cemetery Association of Wallingford, and that said claim so allowed to him was a claim due Mm in trust for said association.
It is an elementary principle that an action in a court of law for the enforcement of a right must be in the name of the party holding the legal title. 1 Chit. Pl. 3.
In Heald v. Warren, 22 Vt. 409, the court say: “It is well settled, that the person having the legal interest has at law the right of action.” A trustee has the legal title to funds which in equity belong to his cestui que trust, and suits at law for the recovery of such funds have to be instituted and carried on in the name of the trustee. Here it is alleged that the claim allowed to Kent was due him in trust for the cemetery association; so that Kent, as far as *312this claim was concerned, occupied the relation of trustee for the association. Hence, any suit to collect the claim should be in the name of the party representing him as trustee.
It is claimed that the demurrer was filed out of time, and so the insufficiencies complained of in the declaration are to be treated as having been waived.
The 4th subdivision of sec. 2303 requires that the declaration on the bond shall definitely assign and set forth the breaches of the conditions on which the prosecutor relies; the 5th, that judgment shall be rendered as on nil dicit for the penalty of the bond against such of the defendants as do not comply with the terms mentioned in subdivision 6, but that no costs shall be taxed on such judgment; the. 6th, that the defendants who may wish to resist such judgment shall on or before the third day of the first term plead the general issue and with their plea file their affidavit that they believe or are advised that they did not'execute or deliver such bond, or shall demur to the declaration; the 7th, that if on the trial the issue on such plea or demurrer is found in favor of the plaintiff, judgment shall be rendered for the penalty of the bond; and for the plaintiff for his costs occasioned thereby; the 8th, that when judgment is rendered for the penalty of the bond, it shall remain in force as security for other breaches that may afterwards be assigned and proved; the 9th, that the action shall thereafter proceed and be prosecuted in the name of the prosecutor on the breaches assigned, and if he prevails, he shall have judgment for his damages and costs.
The judgment that was rendered for the penalty of the bond under subdivision 5, was as on nil dicit. The judgment imposed no direct liability upon the defendants, and inasmuch as it was without costs, they had no legal interest to resist it. The judgment rendered for the penalty of the bond remains in force as security for such breaches of the conditions of the bond as may be assigned and proved. It *313is obvious that it was not intended that the legal sufficiency of the breaches assigned in the declaration or the right of the prosecutor to prove them, and to a judgment upon such proof, should be determined in a suit brought for the sole purpose of having a judgment rendered for the penalty of the bond; for it is provided-by the 9th subdivision that after such a judgment is rendered the action shall thereafter proceed and be prosecuted in the name of the prosecutor on the breaches assigned.
Probate Court v. Brainard, 48 Vt. 620, was an action on an administrator’s bond, and was heard on demurrer to the declaration. The demurrer was overruled and judgment rendered for the penalty of the bond. And the court say that such a judgment is a preliminary one, and is one step that the prosecutor must take to enable him to recover the damages which have resulted to him from the alleged breach of the conditions of the bond; that if the court had affirmed the judgment, it could not have rendered final judgment in the case, and that ordinarily this court would have treated the case as prematurely brought into it, and dismissed it as a misentry.
It would appear from what is there said that it was considered that the legal sufficiency of the breaches assigned could not properly be tried under a demurrer to the declaration in a suit brought to obtain a judgment for the penalty of the bond; and that the proper time to interpose a demurrer was upon the trial of the alleged breaches.
A general demurrer is allowable at any time during the course of the trial, and a party is not bound to take one until he finds himself in peril from the- judgment that may be rendered. The defendants did not waive their legal right by not demurring at the first term, and had the right to raise the question of the insufficiency of the declaration by demurrer when they found it necessary to do so to protect themselves against a judgment that might be rendered upon proof of the assigned breaches.
*314When the cause passed out of the jurisdiction of the Probate Court, the rules of pleading that prevail in common law causes would be applicable, except as modified by the statute referred to. And the prosecutor is not by that statute relieved from the obligation of stating a cause of action that would warrant a judgment in his name.
If a judgment shall be rendered upon this declaration in favor of the prosecutor, there will be two judgments for the same claim; — one directly against the estate, and the other against the sureties upon the administrator’s bond. The administrator of Kent is not a party to this suit, and will not be estopped by aiiy judgment that may be rendered, from claiming that the judgment rendered in favor of Kent shall be enforced for the benefit of his estate.
The defect in the declaration is, that it does not state a legal cause of action in favor of the prosecutor; and there is nothing set forth in it that can, by intendment, aid that defect.
The judgment overruling the demurrer is reversed, the demurrer is sustained, and the breaches assigned in the declaration are adjudged insufficient, and judgment is rendered for the defendants.
Powers and Walker, JJ., dissent.