It is ordered by the Court, .that the person on whose application this suit was instituted in the name of the said Elisha Clerk, enter as prosecutor, agreeably to the statute in such case made and provided, and that the said prosecutor assign the breach or breaches of the condition of said bond, agreeably to the said statute, and that the pleadings be closed accordingly, before said cause proceed to trial.

Per order,

Nathan Osgood, Clerk.

And of this the said Elisha prays judgment, because, he says, that the bond aforesaid, on which the action aforesaid was ‘commenced, became by law forfeited to him in his capacity of Judge of Probate as aforesaid, before the enacting of the statute aforesaid, and for that the action aforesaid, and pleadings in the same, were commenced, made, and had before the passing and enacting of the said statute; for that by said order said statute is made to have an ex post facto effect upon the action aforesaid, and for that the said order is illegal, and against the rights of a party vested before the making thereof, and tends unlawfully to call in and make other parties to the suit, and to vest them with the rights of the plaintiff, all which the said Elisha Foster, Judge of Probate as aforesaid, is ready to verify, when and where he ought, &c. Wherefore he prays, &c.

By

Cephas Smith, junior,

Chauncey Langdon,

Samuel Walker, his attorneys.

At Bennington term and County, February, A. D. 1802, in the cause of Nathaniel Brush, Esquire, Judge of Probate, v. Joseph House et al. vid. ante, this volume, p. 87. it was decided, “ that in an action in the name of the Judge of Probate, upon an administration bond, where the bond is dated and the writ tested anterior to the passing of the present act for the probate of wills, &c. the Judge of Probate cannot be compelled to certify the name of the person applying to him to prosecute under the 103d section of that act; and this decision having settled the main question in this case, the Court directed that the order of the Court, of May adjourned term, A. D. 1802, should be reversed,

The plaintiff then assigned certain breaches of the condition of the bond, and issue joined to the Court, who found for the plaintiff, with one cent damages and costs.