
    Probate Court for the District of-, Benjamin Barber prosecutor, v. Willard Bates et al.
    
    In a breach of the conditions of a Probate Bond, many things which will not amount to a legal defence, will reduce the damages.
    If an adminisirator make sale of land, under an order of the court of probate, and do not account therefor, it is a breach of his bond, for which the ordinary rule of damage would be the price of the land. But if an administrator de bonis non be appointed, who actually receives the pay or any part thereof, and renders an account therefor, on which a dividend is made ; this will, so far, mitigate or reduce the damages, though amountingto no legal defence.
    Debt, on a bond given to the probate court, by the defendants, as surety for Elisha Lovett, administrator of the estate of-Elijah Lovett, deceased, dated February, 4, 1825. A judgment was rendered in the county court for the penalty of the bond at the December term, 1836, and at the December term of said court, 1837, the issues on the breaches assigned by the prosecutor were tried.
    It appeared on the trial, that the estate of Elijah Lovett was represented insolvent; that a claim against the estate, was allowed in favor of the prosecutor at $191,14 ; that the said Elisha had been cited to render an account of his administration, in the probate court, and that he rendered an account of the personal estate only; that he was duly licensed to sell the real estate, and_ in March, 1825, sold the same for $ 1675,00, and that he never rendered any account therefor in the probate court, nor paid any part of the avails thereof to the creditors.
    It further appeared, from the evidence offered by the defendants, that when the real estate was sold, two notes were taken for the purchase money, one against Solomon Wright foi one half of the amount of the sale, and one against Henry Lovett for the other half; that in October, 1827, Elisha Lovett, the administrator, removed out of the state, and Sylvanus Danforth was appointed administrator de bonis non of the estate of said intestate, and received the two notes before mentioned, on both of which there were endorsements made by the former administrator; that the said Danforth called on the said Wright and Henry Lovett, for payment of the notes, and was unable to obtain payment, the said Wright and Henry alleging that they had demands against the estate of the said intestate ; that the said Danforth, being advised that he could not collect said notes, made a settlement . . _ , , with Henry Lovett, and received of him two notes, amoun^nS to about seven hundred dollars, one of which notes had been collected and credited by him in his administration accoun^ an{j a judgment had been recovered on the other, which remained unpaid; that said Henry had removed out of the state, and the demands against him could not be collected; that Danforth brought a suit against Wright on the note given by Wright, and a judgment was recovered in said suit, in favor of the estate, for about twenty five dollars, which remained unpaid; that said administrator de bonis non had filed his account in the probate court and a dividend of the amount in his hands, was, by said probate court, ordered to be paid to the creditors, and that the dividend due to the prosecutor had not been paid.
    Upon these facts, the county court decided that the defendants were liable for the whole amount of the sale of the real estate, and that the accounting for a part of the avails of it, by the administrator de bonis non, in the probate court, and a dividend being made of the sum so accounted for, did not exonerate ‘the defendants from any part of the original liability of the first administrator, and rendered a judgment for the plaintiff, to recover the proportion of the sum of $-1,675, which the debt of the prosecutor bore to the whole amount of the claims of the creditors.
    To the decision of the county court, the defendants excepted.
    
      U. Robinson fy D. Robinson, for defendants.
    
      John S. Robinson &f P. Isham, for plaintiffs.
    It is claimed that the defendant is liable to pay to the plaintiff, for the non-performance of the condition of this bond, by the administrator, the sum of $76,40, being the dividend upon the sum of $1675,00. And also interest upon the dividend from the time the administrator should have rendered his account.
    This is the rule of damages adopted in the cases of Warren v. Poioers, 5 Conn. 373, and 3 Conn. 289, and it is no excuse, at law, for the breach of this bond by the administrator, that the notes taken by him on the sale of the real estate went into the hands of the administrator de bonis non, and were subsequently accounted for by him, 5 Conn. 373. 2 D. Chip. 16. 3 Conn. 289.
    
      The administrator, by taking notes instead of money upon the sale of the estate, thereby became personally liable upon his bond for the amount sold. 1 Chip. 409.
   The opinion of the Court was delivered by

Collamer, J.

This was on a hearing in the assessment of damages, on the alleged breaches of a probate bond, in not accounting for land sold, and paying over the same to creditors. Judgment had been already rendered for the panal part of the bond, in relation to which no question is before us. There is no doubt that the administrator sold land, under the order of the probate court, and has neglected to account therefor. There has, therefore,been a breach of the condition of the bond, and no subsequent accounting or payment could heal this breach, or constitute a defence. All, therefore, which was offered or shown by the defendant, and even much more, could not have constituted a defence. This is all which the authorities cited by the plaintiff tend to show. But the question still remains, cannot many things, which amount to no legal defence, be received to mitigate damages. The ordinary rule of damages for the breach of neglecting to inventory property, is the value of such property; but if it be shown that it was afterwards actually accounted for, to the estate, that would essentially reduce the damages. The neglecting seasonably to account for land sold, is a breach of the bond, the ordinary rule of damage for which would be the price for which it was sold. But in this case, the defendant showed, among other things, that several hundred dollars of the avails of this sale, was actually received, in money, by the administrator de bonis non, and actually went into his account, and a dividend was thereon struck to the creditors. Now, (to say nothing of the Wright note, which was of more difficult solution) this money should, most clearly, reduce the damages, as much as if the same amount had been accounted for by the first administrator, — but it appears to have been all rejected by the court.

Judgment reversed.  