Durfee v. Dean

Cooley, C. J. This action was upon an administrator’s bond, to recover moneys which by an order of the probate court the administrator had been directed to pay to one of the heirs. The penalty of the bond was one thousand dollars ; the amount found to be due under the order was forty-five dollars. The judgment rendered was for the penalty, and execution was awarded for the amount so found due with costs of suit. The sole error assigned is the award of costs. It is argued that the controversy was within the jurisdiction of a justice of the peace, and the case should not therefore have been brought in the circuit court. If the bond had been an ordinary money bond, the obligee might have brought assumpsit upon it in justice’s court for any amount within the jurisdiction of that court, irrespective of the amount named in the bond as the penalty. But when a probate bond is sued, the judgment for the penalty stands [388] as security in case of further breaches, and other parties than the party first suing may iiave scire facias upon it. How. St. § 6003. This suit could not therefore have been brought in justice’s court. The judgment must be affirmed with costs. The other Justices concurred.