¶1One of error assigned, in this case, is, that an action does not lie on the penal part of a probate bond; but that the condition and the breach should be set forth in the declaration.
¶2In regard to this objection, it may be remarked, that this is the usual mode of declaring on all bonds with a condition; and no good reason can be assigned, why a different mode should be adopted, in declaring on an official bond, like the present. It is, indeed, said, that the statute only authorises the judge of probate to take a bond with condition ; and when he brings an action, in his official character, he can declare only on such a bond as he is empowered, by the statute, to take. If this mode of declaring precluded the idea, that the bond was upon condition, there would be force in the objection. But such is not the fact. The statute prescribes the form of the bond, but not the form of the action. This, of course, then, is regulated, by the principles of the common law. It may be added, that this, it is believed, has been the uniform mode of declaring upon probate bonds, ever since we had a probate system; and we see no reason for innovating on the practice.
¶3The only remaining enquiry is, whether the rejoinder of the defendant be sufficient. And upon this question it would seem hardly necessary to make a single remark.
¶4The replication assigns a specific breach. It is averred, that Charles Bolles received of the estate of his ward the sum of two thousand dollars, which he never accounted for, either to the judge of probate, or to the ward, after he arrived at full age. The only allegation which professes to answer the breach, is, that Charles Bolles rendered his account to Joseph French, administrator on the estate of Thomas R. Bolles, deceased.But there is no averment, that he ever paid over the money,made any settlement, or did any thing more than hand over to the administrator a mere statement on paper. And the only enquiry is, whether this be an accounting, within the spirit and meaning of the bond ? In Topham v. Bradish, 1 Taunt. 571. it is said, that by an account, is not meant a piece of paper merely, but payment. It cannot be necessary to multiply authorities in support of a proposition so obvious, as well as reasonable.
¶5*562There is nothing erroneous in the judgment of the superior court.
¶6Judgment affirmed.