
    Fitch, Judge of Probate, v. Lothrop et al.
    In an action on a probate bond tlie breacli must be directly and positively averred.
    ActioN upon the administration bond, given for said John. In the declaration the penal part and the condition of the bond were set forth, with an averment; that the defendants had never paid said penalty, nor performed the condition of said bond.
   To this declaration the defendants demur — And the following exceptions were taken; 1st. That a bondsman is not liable; unless the administrator has committed a devastavit, and in some point been deficient in his duty; and that this ought to appear from the declaration. 2d. The averment is that the defendants have never performed the conditions of said bond; which is a negative pregnant, for the administrator may have performed the conditions; although the defendants have not. Judgment that the declaration is insufficient.  