On Report from Nisi Prius, Appleton, J., presiding.

Debt.

On June 10, 1836, William Abbot, administrator of the estate of Alexander Townsend, “ gave to the plaintiffs a bond binding himself, his heirs, executors and administrators in the penal sum of $2000, conditioned, that whereas the said Abbot had agreed to sell and convey to the plaintiffs by a good and sufficient deed of warranty, a tract of land [described,] and is to receive for the same the sum of $10,500, with interest, viz. $2000 in cash ; $2000 by Oct. 1st, 1836 ; $2000 by Jan’y 1, 1837; $2000 by April 1, 1837; and the remainder by April 1, 1838 ; now if the said Abbot, upon payment of the said first installment, and upon the readiness on the part of the plaintiffs to secure the payment of the other sums by a mortgage of the land, shall give to the plaintiffs, or to such person or persons as they may appoint, a good and sufficient deed of warranty of the premises, the bond is to be void.

Abbot had previously, in Oct., 1835, obtained license from the Supreme Judicial Court to sell land of his intestate as administrator, at public or private sale, to the amount of #35,000.

On the day of the date of the bond, June 10, 1836, the plaintiffs paid to Abbot the first installment of #2000, which sum he credited to the estate in his administration account, which account was finally settled in 1840.

One of the obligees, in 1848, called upon Mr. Abbot, who said that he could not furnish a warranty deed, and that the only deed he could give was a quitclaim.

This suit upon the bond was thereupon commenced against Abbot as administrator. He died, and the defendant was appointed administrator, de bonis non, and comes in- to defend.

The parties then agreed that if the action is maintainable, the damages are to be assessed by the Court upon evidence to be introduced.

The bond is the bond of the estate, not the bond of Abbot. R. S., c. 91, § 14.

Abbot, having authority to sell, had, as incident to it, the power to contract for a sale. Such a power is necessary.

But if otherwise, the heirs of Townsend have received the two thousand dollars. Unless this suit be available, they keep that money without an equivalent, especially as, in an action for it, the administrator de bonis non may plead the limitation statute.

If, in any little particulars, Abbot was chargeable with neglects, subsequent to giving the bond, it is not for the defendant, representing the same estate, to make the objection.

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