I shall restrict my opinion in this case to the principal questions madé in the argument; the other objections, appearing on the record, having been expfessly, or impliedly, waived.
It was, in the first place, contended, that the action had been prematurely brought; having been commenced prior to the time, when, by the order of the court of probate, the defendants were to render an account of their administration. This action is founded on the not making and exhibiting a true and perfect inventory, within the time mentioned in the condition of the bond. This period had been permitted to elapse, without the exhibition of an inventory; and by necessary legal consequence, the bond was broken, and the cause of action accrued. To the court of probate it belongs to limit the period within which the inventory «hall be made ; and for this court to prolong the time, would be an uhwar-*294rantable assumption oi jurisdiction, and dispensing with the solemn contract the defendants have made. The time within which the account was to have been rendered,—one of the last acts of administration,—has no bearing on the point in question. It is sufficient,, that the contract was infracted, in the particular for which the plaintiff has instituted his suit.
It is next objected, that the replication has not shown for whose benefit the suit was brought, nor given a rule of damages. This is a question on the record, and applies itself to the legal sufficiency of the pleadings. If it is an error, it cannot be reached by a motion for a new trial.
It has been made a question, though not much insisted on, whether the administrator was obliged to inventory the real estate fraudulently conveyed to him by the intestate, until it was ascertained that it was actually wanted for the payment of debts. On this subject there exists no controversy. The fraud having been found by the jury, the deed conveying the real estate was utterly void as against creditors, and the intestate died possessed of it. Perrot v. Austin, Cro. Eliz. 232. Bethel v. Stanhope, Cro. Eliz. 810. Pope v. Skinner, Hob. Rep. 72. Gooch's case, 5 Co. 60. It is not distinguishable, so far as relates to the inventory, from the residue of the intestate’s estate.
The rule of damages adopted was entirely correct. By the omission to perform the condition of the bond, the penalty became forfeited; and the principle of equitable mitigation, was the one stated by the court. The jury were directed to assess damages, not exceeding the value of the estate omitted to be inventoried, nor. the amount of the debt for which the suit was brought. The object of the law requires the adoption of this rule. It is impossible to determine before-hand, that any sum short of this, will coerce the making and exhibiting of an inventory ; and if a second suit might be instituted, (which I do not admit) for any subsequent omission on this subject, a. delay, unjust, and ascribable to the official misconduct of the administrator, would be the inevitable consequence. Volenti non fit injuria, may, not unjustly, be applied in this case. If the administrator is subjected tó any loss or inconvenience, from the estimate which the jury may put on the property, or other cause, he has no ground of complaint. But, on the other hand, if the creditor is allowed to recover a sum sufficient only to move the administrator to the per-*295formanee of his duty,—a matter of mere speculation, and indefinable by any rule,—he is made to suffer for the misconduct of another.
The other Judges were of the same opinion, except Brainard, J., who was absent.New trial not to be granted.