
    John Simkins, Ordinary, v. Benjamin R. Montgomery and Robert Cresswell.
    Debt on an administration bond against A., the administrator, and B., the security. Plea, performance of the condition generally. Replication, that the plaintiff ' (the Ordinary), by his decretal order or sentence, had directed A. to pay, &c., and concluded by averring, as a breach of the condition of the bond, that A. did not perforin this sentence or order; rejoinder, that there was no such sentence. Held, that a decree against A. and wife would not support the replication; the allegata and probata not corresponding.
    'Pried before Mr. Justice Oot-cook, at Laurens, Spring Term, 1819.
    In 1810, the defendants entered into a bond to the plaintiff, the Ordinary of Edgefield district, conditioned that the defendant, Montgomery, should faithfully administer the estate of the late John Dunlap, whose widow he had married, and this was an action of debt on that bond.
    The defendants pleaded non est faHum, and performance of the condition generally ; and the plaintiff took issue on the plea of non est factum, and replied .to the plea of performance, that the plaintiff, “ by his decretal order or sentence, after having duly and properly examined and adjusted the accounts, receipts and expenditures of the said Montgomery, administrator as aforesaid, directed and appointed the said Montgomery *to pay to the sisters and brothers of the said John Dunlap, $1772.50, with interest from February, 1807,” and concluded by averring a breach of the condition of the bond in not performing this order or decree.
    To which defendant rejoined that there was no such decree.
    In support of this replication, the plaintiff produced a decree made by himself, as Ordinary, which is preceded by an account of the administration, entitled “the estate of John Dunlap, in account current with B. It. Montgomery and wife,’’ and the decretal order recites that, “ whereas B. It. Montgomery and wife, have been duly cited to appear before me in the Court of Ordinary, to account as administrator and administratrix, on the estate of John Dunlap, deceased, and to pay over to the distributees their respective shares thereof; and whereas the said B. It. Montgomery and wife have failed to attend the said Court pursuant to the said citation,” &c., and after ascertaining the balance of the estate, after payment of debts, orders that the sum mentioned in the replication, with the interest, be paid to the brothers and sisters of the said John Dunlap.
    The introduction of this decree in evidence was objected to on the part of the defendants, on the ground that on the face of it,-it appeared to bean account of the administration of B. R. Montgomery and wife, as administrator and administratrix, and against them jointly, whereas that set forth in the replication was a decree against B. R. Montgomery individually, and did not therefore support the replication. This objection was, however, overruled, and the plaintiff had a verdict for the amount of the decree.
    'The defendant now moved for a new trial, in arrest of judgment, and for a nonsuit, on a variety of grounds, which were enumerated in the brief.
   The opinion of the Court was delivered by

Johnson, J.

From the view which the Court have taken of this case, it becomes necessary only to consider the ground *which has been made on the admissibility of the decree of the Ordinary, as evidence under the plaintiff’s replication ; as on that alone, it is thought the object of the motion may be attained.

The rule, that the proof should substantially accord with the allegation, is so manifest, that it is only necessary to make the application of it to the facts in this case.

Crenshaw, for the motion. Downes, contra.

1. The replication states, that the plaintiff, as Ordinary, had examined and adjusted the accounts, receipts and expenditures of Benjamin R. Montgomery, administrator,” &e., whereas the decree, offered in evidence, recites, that he had “examined and adjusted the accounts, receipts and expenditures of B. R. Montgomery and wife, administrator and administratrix,” &c.

2. The replication states, that the plaintiff, the Ordinary, had “ decreed and appointed the said B. R. Montgomery, to pay to the brothers and sisters of the said John Dunlap,” the sum therein mentioned ; and the decree directs and appoints that the sum mentioned, should be “ paid over to the brothers and sisters of the said John Dunlap,” necessarily implying that it was to be paid by B. R. Montgomery and wife, who were styled the administrator and administratrix, whose accounts it professed to settle and adjust. There is then, in point of fact, a variance between the decree set forth in the replication, and that adduced in evidence, and it is only necessary further to inquire, whether that variance is material in relation to any of the defendants.

The bond on which this action is brought, professes to be for the faithful administration of B. R. Montgomery alone, and in any view of the subject, Cresswell, the security, is only accountable for that administration. Now the decree shows either, that the administration, then spoken of, was on another estate or a different administration on the same estate, or, what is said to be true in point of fact, that a previous administration had been granted to the wife alone, on *the same estate, before the intermarriage, and that part of the decree, directing interest to be paid on the principal sum from 1807, three years before the date of the bond, shows, that accounts antecedent to the administration of Montgomery, were taken into consideration, for which the defendant, Cresswell, as the security, is clearly not responsible; and it as clearly follows, that the probata is substantially different from the allegata.

I am, therefore, of opinion, that the motion for a nonsuit ought to prevail.

Nott, G-antt and Richardson, JJ., concurred.

4 Rieli. 274, 284.  