The opinion of the Court was drawn up by
Shefley J.One of the creditors of the late John Stevens, upon whose estate the defendant, Cummings, is administrator, *58claims to recover, in this suit, his share of a sum of money, alleged to have been due to the intestate from John Prince. A small part of this sum was collected, the administrator having made a compromise and relinquished the remainder. If in this he conducted unfaithfully, he may be required to account for the amount relinquished. He is, however, entitled by statute, c. 51, § 72, to be heard before the Probate Court, and to have a decision there, in a manner the least expensive, whether he should or not so account. And he must be cited, to allow him that privilege, before a suit, requiring him to answer elsewhere, can be maintained upon his official bond. Potter J. v. Titcomb, 7 Greenl. 321.
The estate is insolvent, and a dividend had been decreed to be paid to the party interested in this suit. This amount was tendered, before the action was brought, but it is insisted, that the tender was ineffectual because it was not kept good by bringing the money into Court. There can be no forfeiture of an official bond, without proof of a dereliction of duty. And in such case, judgment would be rendered for the penalty, while execution would issue only for the amount of damage proved. And the party may not be informed of the particular default charged, until it would be too late to bring money into Court. The party recovers damages for an injury suffered, although a debt due may be the measure of damages. The same rule does not prevail in such a case, as in the case of a single bond or contract between party and party,, where the tender must be .kept good, by bringing the money into Court. When an administrator has tendered the amount decreed to be paid to the person entitled to it, he has performed his duty; and there is neither neglect of duty nor breach of the bond. It is sufficient for him, that the plaintiff fails to shew any forfeiture of the bond, when the action was brought.
As the .action could not be maintained upon the merits, if the amendment were allowed, it is unnecessary to decide upon it.
Plaintiff nonsuit.