delivered the opinion of the Court. A verdict in this case having been returned for the plaintiff, a motion has been made by the defendants to set the verdict aside and grant a new trial, and also a motion in arrest of judgment, for several causes assigned in the respective motions.

At the trial the defendants objected to the admission of the judgment of Sheffield against the plaintiff, on the ground that it could only have been rendered in consequence of some confessions or admissions, made by the plaintiff himself, to avoid the bar of the statute of limitations, and that therefore he ought not to avail himself of such judgment, in his own suit against the heirs of Samuel. But the Court are of opinion, that the objection was rightly overruled, and the judgment properly admitted. The action was on a bond of indemnity against all partnership debts ; the judgment in question was upon a partnership debt, against the plaintiff as survivor. It was exactly .herefore such a judgment as the bond was intended to indemnify nim against. It was necessary for him to show that such a copartnership demand was enforced against him under the compulsion of a judgment.

Further, when the plaintiff was sued by Sheffield, on an instrument purporting to be the joint obligation of Samuel and Joseph Valentine, it appears, or there was at least evidence for the jury tending to show, that Joseph Valentine gave notice of the suit to Matthew Metcalf, who was then the administrator of the estate of Samuel Valentine, that he Metcalf gave the l'ke notice to the mother and guardian of the defendant Mrs. Farnsworth, then Eliza Valentine, one of the daughters and heirs of Samuel Valentine, that she, the guardian, requested Mr. Metcalf to do the best he could with it, that upon this *182request, he did undertake to defend the suit, and that Joseph Valentine the plaintiff gave up the defence to him, and he retained counsel for the purpose. The Court are all of opinen, that this was evidence proper for the consideration of the jury, and if these facts were proved to their satisfaction, the judgment in that suit must be deemed conclusive upon the defendants, of the validity and correctness of the judgment itself, and that it was not competent for the defendants to question it, upon any other ground than collusion or fraud. If however the defendants could prove any fraudulent collusion, between the plaintiff and Sheffield, to enable the latter to recover a false, wrong or erroneous judgment against him, it would be admissible and would bar him of any claim to indemnity on his bond. On this point the burden of proof was upon the defendants.

From the opinion already stated it follows as a necessary consequence, that it is not competent for the defendants to go into evidence to show on what grounds the judgment of Sheffield was recovered, or to show that the defence of the statut of limitations was avoided in that suit, by proof of the confessions or admissions of the plaintiff from which a new promise might be inferred.

Another exception was, that the defendants requested the Court to instruct the jury, that if the plaintiff knew, at the time that he released the land levied upon as Sheffield’s, in the suit brought in the joint names of Samuel and Joseph Valentine, to his brother Samuel, that the execution so levied was obtained upon the note paid in October 1800, it would be evidence of his participation in that fraud of Samuel, and bar him from recovering in this action. But the judge, under the circumstances of the case, refused to give the instruction requested. We are of opinion that this decision was correct. The judgment had been recovered and the land levied on, in their joint names, but pursuant to the agreement at the time of dissolution, Joseph then conveyed to Samuel all partnership debts and claims; he thereby authorized Samuel to commence and prosecute suits in their joint names, but for his own sole oenefit. Joseph could not control him in the exercise of this power, and when judgment was recovered, and execution *183levied, Joseph was a mere trustee for Samuel, of the land levied upon, and was bound to release it on request. Indeed, according to the evidence, the release was made in pursuance of an award, he having 'or a long time refused to execute the release. Under these circumstances, the release thus made was not evidence of a participation of Joseph in the fraud of Samuel in obtaining that judgment.

The motion for a new trial is overruled.

The motion in arrest of judgment, although it assigns several distinct causes, sets forth substantially but one.

It is now well settled, that the right of action against an heir, is a very limited one, and depends wholly upon the provisions of the statutes. Hall, Judge, v. Bumstead, 20 Pick. 2. By the statute no action lies against an heir, unless the cause of action accrues after the time for bringing an action against the administrator has closed. It is therefore necessary to show matter enough in the declaration, to make it manifest, that the right of action against the administrator had closed, when this action was commenced. By St. 1791, c. 28, § 2, no action can be brought after the expiration of four years from the time of administration first taken, provided that the administrator have given notice of his appointment in the manner prescribed in St. 1788, c. 66, viz. “ by causing notifications thereof to be posted up in some public places, &c., and shall also give such further notice thereof by causing the same to be published in some newspaper, or in such other manner as the Court of Probate shall in writing direct.”

The plaintiff therefore must show that such notices were given, m order that the term of time may commence, upon the lapse of which the right of action against the administrator is barred.

In the present case, it being averred that the cause of action arose upon the rendition of the judgment against the plaintiff at Worcester, at a certain time fixed, it would follow as a necessary inference, that the right of action against the administrator was then barred by force of the statute, if the notices had been given according to its terms. Such averment therefore Becomes material.

The plaintiff, in his declaration, did aver, that the adminis*184trator gave notice in the manner ordered and directed by the judge of probate, by his order remaining of record, but did not aver the posting of notices, which is required by the statute, together with such other notice as the judge of probate may order.

Before it was decided whether this defect would be fatal or not, the plaintiff moved to amend his declaration after verdict, by adding such an averment. In support of this motion it was shown, that soon after the first administrator on the estate of Samuel Valentine was appointed, an order was passed by the judge of probate, in the form which has long been practised in the Probate Court, directing the administrator to give notice of his appointment, by posting notices in public places, and by publishing in a newspaper. It also further appears, that the affidavit which is by statute made evidence of the compliance with such order, if filed in the probate office within seven months, was duly made and filed within the time limited by law. All this was matter of record in the probate office, long before any controversy arose upon this subject, and this exception was not taken at the trial, and no question arose then upon the fact of such notice having been given. Under these circumstances the averment actually contained in the declaration, that notices had been given in the manner directed by the judge of probate, was equivalent to an averment that notices had been posted. It was however defective in form, because the order was not recited or set out in the declaration. Under these circumstances the Court consider the defect as one of form only ; and therefore under the very broad power given to the Court by the Revised Statutes, (c. 100, § 22,) to amend before and after verdict, in all cases, where the justice of the case requires it, they are of opinion, that the amendment ought to be allowed. The amendment being made, the Court are of opinion that the motion in arrest of judgment is not supported, and must be overruled.

Judgment on the verdict for the plaintiff.