#### Mayo, Chairman of Edgcombe County Court, to the use of Stillman, v. Mayo, Price and Harrell.

From Edgcombe.

rín an action upon an administration bond, it is not necessary for the Plaintifl’to tender a refunding bond to the Defendant, to give him a right of action.

Bebí on administration bond, tried before Badger, Judge. The bond was given by the Defendant Mayo, and the other Defendants as bis securities, upon obtaining administration on the estate of one Griffis, deceased. The real Plaintiff, Stillman, was the assignee of tbe next of kin, and sought to recover the surplus of the estate, which he alleged remained in the administrator’s hands, after payment of debts, See. Three breaches were alleged — 1st. In not returning an inventory, &c. within the time prescribed. 2d. In failing to collect, &c.: and 3d. In failing to pay over. The pleas relied on wove, se Conditions performed, and always read;'.”

On the trial, it appeared that the administrator hat not returned an inventory until after the time prescribed. In this inventory, (among other debts due the intestate,; the adminstrator stated, three notes of his own, payable to his intestate, for about the sum of $330, and in the inventory these debts were described as bad debts. It. appeared that the administrator had properly ad minis* tered, in paying debts and funeral charges, a sum equal to the residue of tbe property contained in bis inventory besides his own debts. If his own debts were bad, áy stated in the inventory, he had nothing remaining for distribution ; if his own debts were good, and properly chargeable against him, then he had in bis hands a considerable sum, to which the distributee was entitled.

There was contradictory evidence as to the solvency of the administrator, and his ability, after qualification,,, to pay these debts.

*330Jt was then contended by Defendant’s counsel, that the Plaintiff could not recover in any event, as no refunding’ bond had been tendered the Defendant, and that was an indispensable precedent condition to be performed by him before any right of action accrued. The presiding Judge instructed the Jury, that the Plaintiff’s right to demand any thing from the Defendants, depended on the truth or falsehood of the administrator’s return respecting his own debts : that the distributee should not be in a worse situation in consequence of administration having been committed to a debtor of the intestate, than if it had been granted to a third person, but on the contrary, had a right to be in a better : that if the administrator, when he obtained his letters, was in such a state of solvency that (had another person been administrator) the debt could, by due diligence, have been collected from him, then it was part of the fund for distribution, and the Defendants were chargeable with it 5 and if the Jury was satisfied such was the fact, the Plaintiff would be entitled to a verdict, unless the want of tender of a refunding bond furnished an objection ; and on this point, the Judge instructed the J ury, that if, in this case, they were satisfied that the administrator, so far from being willing or ready to settle with the Plaintiff upon any terms, had, from the first, utterly denied his right, and had denied that he himself had any fund for distribution, and neither admitted Plaintiff’s claim nor his own liability to any amount, and that the want of a refunding bond was not at all the obstacle to a settlement •, then the Defendants were not at liberty now to avail themselves of the objection. If the Jury believed the facts to be otherwise, then the objection was a good one. A verdict was returned for the Plaintiff. Motion for new trial overruled, judgment and appeal.

Taylor, Chief-Justice.

The single question in this case is, whether it was necessary for the Plaintiff to ten*331der a refunding bond to the Defendant, to give him a right of action on the bond. The giving a bond is not made a condition precedent by the act of 1789, but that and paying out the distributive shares, are made mutual acts. It shall be paid over to such persons to whom it is due by law, “ such persons giving bond with two or more able sureties.” Eveu in covenants, if one party-covenants to do one thing, the other doing another, it is a mutual covenant, and not a condition precedent — (2 Black. Itep. 1312.) But in whatever light it may be considered, it is clear, from the circumstances of the case, that it was neither necessary for the Plaintiff to prepare or tender a refunding bond ; for the administrator, by a public official act, had dispensed with the obligation. He asserted in the inventory, his inability to pay this debt, and went as far as lie could to assure those entitled to demand it, that he would be no more able to pay upon the receipt of a refunding bond, than without one. After this, it would have been useless to prepare a bond, since the distributee had good ground to believe that the surplus would not be paid over, and that he was discharged from what might otherwise be deemed a duty. (The subject was fully considered in 1 Hawks’s Rep. 427, and applies to this case.) It was therefore very properly left to the Jury, to consider whether the want of a refunding bond was or was not an obstacle to the settlement. A new trial is refused.

Hair and HesdersoN, Judges, concurred