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.