This suit is brought upon the bond executed by the defendant, as administrator on the estate of Amasa A. Eddy, deceased. The parties pleaded to issue. The breach set out by the plaintiff was, that the defendant, though he had been cited by the Court of Probate to account, had neglected and refused so to do, to which the defendant replied, that he had not refused and neglected toaccount with the said Court of Probate, and upon this, issue was joined. This was the only issue to the jury, and their only inquiry was, did the defendant account? It was not necessary, on this issue, to offer the bond in evidence, or to produce it or any evidence in relation to it. The pleading of defendant admits the validity and execution of the bond, and the ability of the plaintiff to sue, and rest his defence, so far as the only issue is concerned, upon the fact that he did account. Whether the bond was originally approved by the Court of Probate, is no part of this issue. The ruling of the Court therefore, that it was unnecessary for the plaintiff to prove such approval, which is here made a ground for new trial, was not open to objection. *Page 519
Upon the trial of this issue before the jury, the plaintiff put in evidence that the defendant was, on the second day of October, 1862, cited by the Court of Probate, to present his account of administration on said estate, on the 11th day of said October, and that the defendant did not appear before said Court in compliance with said citation, to render any such account. This evidence was relied upon by the plaintiffs to prove the breach assigned by them in the pleading. It was in evidence on the part of the defendant, upon which he relied to sustain his defence, that, after his failure to account, viz: on the 11th day of October, 1862, the Court of Probate ordered the defendant to be cited to appear on the second Saturday of the following January, to render his account. Still later, on the 13th day of December, 1862, they ordered the defendant to be cited to appear before said Court, on the 13th day of January, 1863, to show cause why he had neglected to render his account.
That on the 14th day of February, his account which he had filed in the office of the clerk of said court, on the 19th day of January, preceding, was received by said court and continued for consideration to their meeting in March, and notice thereon ordered to be given, and at their meeting in March, was indefinitely postponed, the same being, by said Court, deemed imperfect and unsatisfactory.
That afterwards, on the 2d day of January, 1864, he was, by order of said Court, cited to appear on the second Saturday of said month, and show cause why he had neglected to settle an account; that he appeared at said time, and offered reasons which the Court deemed unsatisfactory; that on the 14th day of February, 1864, said Court received his account which had been filed with the clerk on the 19th day of January, preceding, and referred it for consideration to a meeting to be held in March, following, and made another further reference to the 3d Monday of March, and have made no further order or decree concerning the same, and no proceeding has been had by defendant thereon.
Upon this evidence, the defendants asked the Court to instruct the jury, that the Court of Probate, by before recited acts, orders, c., had waived this breach (if any there were) of the said *Page 520 bond, in not accounting on the said 11th day of October, 1862, and that therefore the plaintiffs were not entitled to recover. The refusal of the judge to give such instruction, and on the contrary, instructing them that it was not a waiver in law, is made a ground for a new trial.
There was no account settled by the defendant with the Court of Probate. There was no account ever presented to the Court, which seemed to have commended itself to the Court as an account of administration. The first was postponed indefinitely as unsatisfactory and imperfect. The second was never acted upon, except first to refer for consideration to another time, and finally ceased to act upon at all, defendant as well as the Court suffering it to pass from their notice.
An actual settlement and allowance of an account by the Court of Probate, has been adjudged to be waiver of a prior breach, in not accounting. We have been furnished with such an authority. But our request for one which holds that any action of the Court, less than this, is in law, a waiver, has not been answered, and we do not find such a case. The matters put in evidence by the defendant, the citation to account though not complied with at the time, the presentation of an account at a later period, the partial consideration given the one or the other, may be strong evidence for the consideration of the jury, in determining whether there is in fact any intent to overlook the breach already made in the condition of the bond, and give up all idea of suit therefor. The question is one of fact for the jury, and not one of law for the court to determine, and so it was left by the learned judge who heard the cause, and we do not feel warranted in saying that there was any error in the instruction he gave, or in refusing that which was asked of him, or that it furnished any ground for a new trial.
The judge was asked to instruct the jury that the defendant, by rendering an account to the Court of Probate, in January, 1863, which was before the said court in February, 1863, and by rendering his account to said court in January, 1864, which was received and referred for consideration before any suit on the bond, did thereby comply with the condition of said bond, and *Page 521 with the law relative to rendering accounts when cited. This instruction was refused.
The issue to be tried was, simply, whether the defendant accounted on the 11th day of October, 1862, which the plaintiff alleges he neglected to do, and assigns this neglect as a breach of the bond. This allegation is traversed by denying that he did neglect thus to account. Upon the trial of this issue, we cannot hold that the subsequent proceedings as above set forth are in law conclusive, even if admissible, as evidence of compliance. We cannot therefore sustain this exception. The motion for new trial is therefore overruled.