
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1813.
    (Present — Judges John Fauchereaud Grimke, Elihu Hall Bay,Joseph Brevard, William Smith, Abraham Nott, and Charles-T ^ ' Jones Colcooe, Esquires.)
    The Ordinary of Kershaw District v. Absolam Blanchard.
    In an action of debt on an administration bond, the defendant pleaded a1 variance between the bond taken and that prescribed by A. A. 1789 ; but the presiding judge decided in favor of the plaintiff, holding that-the bond was sufficient to maintain the action, notwithstanding the variance. Nott, and Smith, Js., were of opinion, that the variance was fatal to the bond, as the administrator, though ho might comply with the conditions, could not plead a performance of his duty under the statute. Brevard, and Colcooe, Js., were of a different opinion, and thought the bond good on common law principles, not being unlawful, or against state policy.
    Motion to reverse the decision of the Circuit Court of Common Pleas of Kershaw district.
    This case was argued in December, 1812, and stood over for" consideration. The action was debt on an administration' bond. Defendant pleaded a variance between the bond taken and the bond' prescribed to be taken, by A. A. 1789. The plea, after craving oyer, points out the difference, in the following particulars : In the' bond taken, the condition is — “ All the rest and residue of the said goods, chattels, and credits, which shall be found remaining on the said administrator’s account, the same being examined and allowed of by the Ordinary of this district, for the time being, shall deliver and pay unto such person or persons, respectively, as the said Ordinary, by his decree, or sentence, pursuant to the true intent and-meaning of the statutes and acts of assembly, of force in this State, for the better settling intestates estates, shall limit and appoint.” The condition of the bond required by the act, P. L. 496, prescribed, is ; “ All the rest and residue, &c., shall deliver and pay unto such persons, respectively, as are entitled to the same bylaw.” To this plea the plaintiff demurred, and the defendant joined in demurrer.
    Judge Waties, who presided, adjudged in favor of the plaintiff,holding the bond to be sufficient to maintain the action.
    Branding, for the defendant,
    in support of the motion in this éourf, insisted, that the variance was material. On a plea of per-lorrnance, a breach in the one case would not be a breach in the other. No breach can be assigned in the bond in question consistent with the act. A breach must be assigned in the-words of the covenant. The words of the covenant are different from those of the act. Where a new law directs a thing to be done in a particular manner, it can be done in no other manner. Administrators were not known at common law. Their office was created by statute, and what relates to that office must be strictly followed. Cited 2 Bl. Com. 496, 495. Plowd. 113, 207. Bac. Abr. tit. Sta; tute. The bond seems to have been taken pursuant to the stat. 31,-c. 2. P. L. 81. But the A. A. repeals the statute, although it contains no negative words. It is a posterior law contrary to the former. The next of kin might have called on the Ordinary, and compelled the giving of a proper bond. This answers the objection, that the rights of individuals ought not to be prejudiced by the', misconduct or negligence of a public officer. Not a parallel case' with that of the Commissioners of the Treasury v. Mayrant, on a sheriff’s bond taken for ¿£1500, instead of £2000, currency, required by A. A. At common law the sheriff gave security : the security required by A. A. was, therefore, not introductory, if a novelty in the law. Besides, £1500, included £2000, currency,- and the A. A. was substantially complied with. It was ruled in that case, that the justice and equity of the statute was not to be defeated by a construction which would imply a negative, where none was expressed. In this case there is a necessity for* implying a negative. The A. A. places the parties in a different situation from that in which they would be in by the stat. of C. The A. A. of 1789, makes the Ordinary responsible for a failure of the security, which was not the case before. A new remedy was in--troduced which ought to have been strictly pursued.
    Hookek, contra.
    
    This is a valid bond at common law. It is not analogous to an attachment bond, which is subject to a proviso. The law points out who shall have shares of the estate. If the act had not required any bond, yet it would be valid. It is a good bond under the stat. C. 2. A mistake of the officer entrusted to' to take it., cannot be a good objection to avoid it. The A. A. 1789,-gives a cumulative reme y. The bond is, at any rate, good so far as it goes. It is good for as much as it is worth. The slat, of Oh. is not repealed by the A. A. The Ordinaiy may be made to answer for Ins neglect, but this will not affect the validity of the bond.- The act does not declare that a bond taken otherwise than the act directs shall be void, as in the stat. H. 6, respecting bail. b°nds. The administrator is not liable until the Ordinary calls him to account. He must be first cited to appear before the Ordinary. So decided in the case of the Ordinary v. Naudin and Brncey.
   Colcock, J.,

was 'of opinion the bond was sufficient to .answer the intent of the A. A.

Nott, J.

The bond not good. The administrator cannot plead performance of his duty under it, although he may have done his duty. The A. A. repeals the stat. of Ch. The act does not sanction what the Ordinary may do according to the condition of this bond.

Smith, J.,

of the same opinion. The Ordinary may make a limitation and appointment contrary to law, and the administrator acting pursuant to the decree of the Ordinary, would comply with the condition of his bond, contrary to the intent of the A. A. of 1789.

BREVARD, J., contra.

An ungracious defence against a bona fide bond. The bond is favorable for the administrator, and good on common law principles, not being unlawful, or against State policy. ' Nothing in the A. A. declaring that any bond not taken pursuant thereto, shall be void. Implied repeals of beneficial laws are not favored. A good bond under the statute. The party injured by not taking a mere beneficial bond pursuant to the A. A., may have his remedy against the Ordinary, but the defendant has no right' to complain. He voluntarily gave tbe bond, which is not unlawful in itself. It was not unlawful at common law to give caution. It was sometimes required of administrators, although not authorized by statute. 2 Stra. 1137. 1 Com. Dig. 366. Plow. 278, 280. 1 Com. on Contr. Part 1, ch. 111. 2 Stra. 1125. 2 Wils. 69. Plow. 113. 3 P. Wms. 461.  