It is insisted that the demurrer should have been sustained; that no action can be *468maintained on the bond; and that the inquiry and assessment of damages were erroneous. In argument it was contended that this bond is not actionable, because the ¡condition is absurd and unmeaning, in requiring Miles .Rayner, the testator, to perform the duties of administrator on his own estate, and that the defect cannot be supplied by any averment or proo£ aliunde.
Without resorting to extrinsic circumstances, we are of •opinion, that there is an obvious mistake apparent on the face of the instrument, but which cannot vitiate or render it ineffectual; that the name of Lewis Moore, the administrator, was clearly intended to be inserted, instead of Miles Rayner, deceased; that by a reference to the immediately preceding part of the condition, in which it is recited, that Lewis Moore had been appointed administrator of Miles Rayner, deceased, and by recurring to the fact that Lewis Moore is bound by name in the penal part, and executed the bond, it is manifest beyond a doubt, that he isthepersononwhom the dutiesof administration devolved, ..and who is required to perform the condition of the bond. And though the form of the bond be prescribed by statute, yet it is sufficient for the ends of substantial justice, if the material requisitions of the statute have been pursued, and the intention of the parties can be collected from the whole of the instrument taken together. We believe it to be the duty of Courts of justice, to give a consistent and sensible construction to all instruments of writing, ut res magis valeat quam pereat, and that we violate no rule of law in saying that this objection ought not to prevail.
It was also insisted, that the plaintiff had no right to resort to an action on the administration bond, before he had exhausted all the powers of the County Court, where he first sought his remedy, and before he had given to the administrator, a refunding bond. As to this position we are not prepared to say, nor is it necessary to decide the question before us, that the County Court had authority to enforce its decree for distribution, by process of attachment, execution, or any other mode pointed out by law. But whether the County Court had or had not this authority, we think it clear, that a distributee could sue on the administration bond, after distribution had been decreed by the County Court, where, by law, the administrator was accountable, and where he was required to settle his administration; and that if the administrator does not comply with the decree for distribution, it would be a violation of *469bis duty, and a breach of the condition of his bond; ánd ren der him liable to an action in behalf of the distributee.
As to the second branch of the proposition, we infer from the record, that the administrator had made, with the County Court, a final settlement; in which case the statute does not require a refunding bond of the distributee. In conclusion, we are further of the opinion, that there was no error in the inquiry and verdict for damages. Indeed, on the defendant’s declining to plead over, there was no other legal course for the plaintiff to pursue, but to submit the case to the jury on an inquiry of damages for the breach of the condition of the bond; and in which they were to be governed by the amount of the decree, with interest from the time it should have been paid. . The Court are unanimous in affirming the judgment.