
    
      The State of So. Ca., for Mitchell vs. Eliza R. Toomer. Same vs. William C. Gatewood. Same vs. William C. Gatewood.
    
    E. I/., being the incumbent de jure, was, on December 3, 1844, re-elected Master in Equity for Charleston District for the term of four years. On December 9, his official bond was executed; on the 24th it was approved by the Commissioners and the Attorney-General, and on March 31, 1845, it was deposited with the Treasurer. His commission was issued May 7,1845, and no oath was endorsed upon it, except the oath proscribed by the amendment to the 4th article of the constitution. E. L. continued to serve as Master during the whole term for which ho had been re-elected, and for defaults committed during that term, this action was brought against a surety on his official bond of December 9, 1844:—
    
      Held, that, because E. L. did not sue out his commission within the time limited by the Act of 1840, § 3, was no defence to the action.
    
      Held, further, that because E. L. did not take, subscribe, and endorse upon his commission, tho proper oaths of office, as directed by the Act of 1840, § 4, was, also, no defence to the action.
    On December 1, 1848, E. L. was again elected Master in Equity for Charleston district. On the 4th of the same month his bond was executed. On the 7th February, 1849, it was approvod by the Commissioners and the Attorney-General, and deposited with the Treasurer, and on the next day his commission, without seal, was issued. E. L. continued to serve as Master until May, 1851, when he resigned; and for defaults committed after December, 1848, this action against a surety on his official bond of December 4, 1848, was brought:—
    
      Held, that because the bond was not approved and deposited with the Treasurer within the time prescribed by the Act of 1840, § 3, was no defence to the action.
    
      Held, further, that because the commission was not under seal, was, also, no defence to the action.
    It is no part of the contract of the sureties to an official bond, that, before their liability shall attach, their principal shall strictly comply with all the requirements of the law, so as to constitute himself, before entering upon the duties of his office, in all respects and in every particular, an officer de jure, and not an officer defacto merely.
    The provisions of sections 3 and 4 of the Aotof 1840, requiring the Master elect to tender his bond for approval, deposit it with the Treasurer, sue out his commission, and take, endorse upon the commission, and subscribe, certain oaths, within a given time, are merely directory. Failure or neglect to comply, is cause of forfeiture; but if the Master exerciso the duties of the office, under the election, his official acts, as to third persons, are valid, and for official defaults his sureties are liable.
    The only efficacy imparted to the official title of an officer elect by a strict compliance with the directions of the law, such as giving bond, suing out his commission, taking the oaths of office, &c., within the prescribed time, is to protect the title against forfeiture. If the State sees proper to excuse his delinquency by granting him a commission, tho defects in his title are cured; and if he be already in office, his de facto title is immediately converted into a title de jure having relation back to the time of his election; or if he be not in office his right to enter becomes unquestionable.
    
      It is the duty of the officer elect to perfect his title hy complying with the directions of the law. His failure to do so is his own wrongful neglect, and is no defence to an action against his sureties on his official bond.
    
      Before O’Neall, J., at Charleston, Spring Term, 1853.
    In the case against Toomer, the report of his Honor, the presiding Judge, is as follows:
    “ This was an action of debt on the bond of the late Master in Equity, Edw. R. Laurens, against the defendant, one of his sureties.
    
      “ The bond in suit, in this case, was executed 9th December, 1844; it was approved by the Commissioners to approve the sureties, on the 24th December, 1844; it was also, as to its form, duly approved by the Attorney General.
    “ The defendant pleaded two pleas :
    
      “ 1st. That the Master did not sue out a commission under the election of 1844.
    “2d. That he did not take and subscribe the proper oaths of office, and cause the same to be endorsed upon his commission.
    
      “ To these it was replied: 1st. That the said Master did sue out a commission ; 2d. That he did, in virtue of the election of 1844, enter upon the duties of his office. Issue was joined, or made up, under these replications.
    “The bond was given in evidence; the penalty was $30,000; its condition recited the election of Mr. Laurens, in December, 1844, and was conditioned, as required by the Act of 1829, (6 Stat. 383,) that the said E. R. L. shall well and truly perform the duties of said office, as now or hereafter required by law, during the whole period he may continue in said office. It was proved that Mr. Laurens was in discharge of the duties, and fully recognized, in and out of Court, as Master, from December, 1844, to February, 1849. It appeared further, in proof, that Mr. Laurens was first elected in December, 1836, and was successively re-elected in December, 1S40, 1844, and 1848.
    “ The plaintiff here rested, and a motion was made for a non-suit, on the ground that the case was not made out. I thought it was. For one found in office, and in the discharge of its duties, is presumed to be rightfully there. The motion was overruled.
    “The defendant then produced the commission, bearing date the 7th of May, 1845. It recites an election in December, 1844. The oath of allegiance was taken and endorsed on the 8th of May ; no other oath was endorsed.
    “ By the journals of the Legislature, it appeared that Ed. it. Laurens was elected Master, 3d December, 1844.
    “ His commission, under his first election, 2d December, 1836, was produced. It is dated 19th December. The proper oaths were taken, subscribed and endorsed, 26th of the same month.
    “The bond, in this case, was filed in the Treasury office on the 31st of March, 1845. The Treasurer then in office, B. R. Carroll, Esq., proved that he gave the certificate required by law, under the opinion and advice of the Attorney-General. The defendants also gave in evidence the commission of 1840, dated 22nd December, under which the Master properly qualified.
    
      “ The defendant contended that she was not bound by the bond, inasmuch as it was not filed in proper time, and as the Master did not take, subscribe, and cause to be endorsed, the proper oaths of office. I thought otherwise, and instructed the jury that the defendant, the surety, could make no such objection. In speaking to the jury, I did say to them, that I had no doubt the defendant would, under the bond, be bound for the acts of the Master from its date, notwithstanding it was not filed till 31st March, 1845, and notwithstanding the commission was not issued till 7th May. But that was not necessary to be looked to in this case, inasmuch as the liability was only alleged, in the pleadings, to be from the 7th May, 1845.
    “Thejury, without leaving their box, found for plaintiff.”
    William C. Gatewood was another surety on the official bond of Edward R. Laurens, of December 9, 1844; and the case against him, first stated, was in every respect the same as that against Eliza R. Toomer.
    
      The defendant in each case appealed, and now moved this Court, first, for a non-suit, on the ground :
    Because the period for which a surety is bound, is always an essential part of his contract for suretyship, and that, under the bond sued upon, the beginning of that period was intended and contemplated to be, the entry of Mr. Laurens upon the duties of the office of Master under and by virtue of his election in 1844; and the plaintiffs rested their case (the bond being admitted) upon proof only of Laurens’ continued exercise of the office of Master, from the time of his first election, in 1836, until 1851, and made no other proof of his having entered upon the duties of the office of Master, under and by virtue of his election in 1844; whereas, it is respectfully submitted, that, as it was proved, Mr. Laurens had been in office previous to his election in 1844, and of right could continue in the same office until he had sued out a new commission, taken and subscribed certain oaths of office required to be taken and to be endorsed upon the said commission, and entered upon the duties of the office, under the election of 1844; it was incumbent upon the plaintiff to prove his qualification, and the time when he qualified under his election of 1844.
    And failing in that motion, then, for a new trial, on the same, and the following grounds:
    1. Because his Honor instructed the jury that, if they were satisfied that Mr. Laurens had been in the actual discharge of the duties of the office of Master, after his election in 1844, they should find for the plaintiff, notwithstanding his omission to take the oaths of office required of him as qualifications, before entering upon the duties of his office under that election; whereas, it is respectfully submitted that, as Mr. Laurens held the said office at the time of his election in 1844, and by the tenure thereof could lawfully continue in the actual discharge of the duties of the said office, while he was forbidden by law to enter upon the discharge of his duties under and by virtue of his election in 1844, until he had duly qualified himself, “ by taking and subscribing certain oaths, to be endorsed upon his commission, which oaths he did not take, subscribe and endorse,” as required by law, all his official acts should have been referred to his lawful authority under his office held over, rather than to the unlawful entry upon the duties of office under his election in 1844.
    2. Because his Honor instructed the jury that the bond sued on made the defendant responsible for all the defaults of Mr. Laurens, as Master, from the date of his election in 1844, and also for his omission to qualify himself according to law; whereas, it is respectfully submitted, that the said bond was prospective and not retrospective, and only bound the sureties for the official defaults of Mr. Laurens, from some certain day after its date, to be determined by his lawful entry upon the duties of his office as Master, under his said election, until which day the sureties of Mr. Laurens’ previous bond were bound by law, and, according to their contract, for all Mr. Lau-rens’ official misconduct.
    3. Because the proof showed that Mr. Laurens never did qualify himself to enter, and he never did enter, upon the duties of the said office, under and by virtue of the said election of 1844.
    In the second case against Gatewood, the report of his Honor, the presiding Judge, is as follows :
    '“This was an action of debt, on the official bond of Edward R. Laurens, late Master in Equity ; the defendant was one of his sureties. The bond was executed 4th December, 1848, and recited his election by the Legislature, immediately preceding its date.
    “ It was proved that Mr. Laurens was re-elected (having been for twelve years previous in office) in December, 1848, and continued till he resigned, in May, 1851, in the constant discharge of the duties of Master in Equity, for Charleston District. That the defendant, Gatewood, transacted business in his (the Master’s) office, after his last election.
    “ The record of the proceedings in Equity at the suit of Mitchell vs. the Master, Laurens, was given in evidence. A decree for the payment of $570 to the complainant, Mitchell, was given in evidence; under it, it was proved the payment had been demanded, and not made, before suit brought.
    “ A confession of judgment by Edward It. Laurens to William C. Gatewood and John Laurens, on the 25th April, 1851, on a bond for $100,000, was given in evidence. This, it appeared, was for their indemnity, and that of others, his sureties, on his official bonds. Judgment was entered 10th May, 1851.
    
      “ The defence was gone into. The commission of 1836 was given in evidence. Certain proceedings against Master Laurens, February Term, 1849, were given in evidence. It appeared that, at the beginning of the term, Chancellor Dunkin, finding that Laurens had not sued out his commission, under his last election, (December, 1848,) caused him to be ruled to show cause why it should not be certified to the Governor that his office was vacant, (
      
      )
    
    
      “ The bond previously given was approved by the proper officers and filed in the Treasury; and thereupon the Master obtained a commission from the Governor, dated 8th February, 1949, which recites his election, December previous. On this commission the proper oaths were endorsed and subscribed. The Master answered the rule, excusing his default, and presenting his commission thus obtained. Thereupon Chancellor Dunkin discharged the rule, and recognized Mr. Laurens as rightfully in office.
    “ The commission is without a seal.
    
    
      “ The defendant contended that he was not bound by his bond, on the grounds — 1st, that the bond was not approved and filed in proper time; 2d, that the commission issued was no commission — not being sealed.
    
      “ I was against the defendant on all his grounds, and instructed the jury that the defendant could make no such objections, and that he was bound by his bond.
    ‘‘ They found for the plaintiff without leaving their box.”
    The defendant appealed, and now moved this Court for a new trial, on the grounds:
    
      1. That his Honor erred in charging the jury that the informal commission issued to the Master was good and sufficient in law to entitle him to enter on the discharge of his duty.
    2. That there is error in charging the jury that the Master was in by virtue of the election held in 184S, and that the term of his previous office was fully ended and determined thereby.
    3. There is error in charging the jury that the requirements of the Act of 1840 were merely directory, and that the election of Master in 1848 was not void by his neglecting or refusing to comply with the said requirements. That the election, and not the commission, was his title to enter on the discharge of his official duties.
    
      Brown, Campbell, McCready, for appellants,
    cited Treasurers vs. Stevens, 2McC. 107; Nason vs. Dillingham, 15 Mass. 170; People vs. Collins, 7 Johns. R. 550; Mclnstry vs. Tanner, 9 Johns. R. 135; 4 Ired. 355; Cro. Eliz. 699; Bac. Abr. Tit. Officer; And. 165 ; Buckman vs. Buggies, 15 Mass. 180; And. 120; 2 N. H. R. 202; Mar bury vs. Madison, 1 Cra. 138 ; 1 Gilp. R. 120 ; Shep. Touch. 394; 2 Bail. 430; 2 Ad. & El. 85; 1 Lit. & B. 365 ; 9 Wheat. 608 ; 2Saund. 411; 5 B. & P. 175; 2 M. & S. 363; So. Ca. Society, vs. Johnson, 1 McC. 41; State vs. Jeter, 1 McC. 233,
    
      W. Whaley, Magrath, Memminger, contra,
    cited Taylor vs. Shrine, 2 Tread. 696 ; State vs. Billy, 2 N. & McC. 357; l Cra. 135; 3 Wash. C. C. R. 464; Peter’s C. C. R. 188; 6 Bin. 88; 2 Gal. R. 15; 4 Cra. 75; 2 Wend. 615; 14 Mass. 167; Cross vs Gabeau & Hunt, 2 Bail. 211; 2 Brock. 96; 5 Peters, 115 ; 10 Peters, 344; 9 Wheat. 733; 12 Wheat. 5 LI; 3 Story on the Con. § 1548; 5 Mason, 438; 2 Brock. 107; Kottman vs. Ayer, 3 Strob. 92; McBee vs. Hoke, 2Sp. 138 ; 1 Green. Cruise, 36-7; 2 Hawks, 233; 5 Pick. 489; 1 Brock. 528; 7 Bac. Abr. 292; 2Lev.-184; 3 Keb. 606; 1 Bl. Com. 283; Dox vs. Post-Master-General, 11 Wheat. 184; 1 Story Com. 325; Levy vs. Hampton, 1 McC. 145; Folk vs. Cruikshanks, 4 Rich. 247; 10 Mass. 290; 1 Bi. Com. 285; 1 Peters, 65; Treasures vs. Ross, 4 McC. 273; 4 Bur. 2008; Duncan vs. Beard, 2 N. & McC. 400; Com. Dig. Patent, F, 3, A, 2, K, 11, pi. 2, 5 Stat. 257: Trimmier vs: Trail, 2 Bail. 486; Ordinary vs. Bingham, 2 Hill, 512.
    
      
      
        (a) The following is a copy of the proceedings referred to:
      In the matter of Ewaed R. Lauiens' Charleston District — In Equity.
      
      By the Coukt—
      
        Ordered, That E. R. Laurens, Esq., acting as one of the Masters in Chancery for Charleston District, do shov cause, on Tuesday, 13th inst., why it should not be certified to his Excellency, the Governor of the State, that the office of Master in Chancery for the district aforesaid is vacant,in tfrder that the same may be filled, as prescribed by the third section of the Act of 1840.
      (Signed,; Benj. E. Dunkin.
      9th Eebruary, 1849.
      ANSWER TO RULE.
      The State op South-Oakolina, Cham/esto* Disteict.
      Edward R. Laurens, on whom a rule has been served, calling on him to show cause why it should not bo certified to the Governor of this State that the office of Master in Equity, for the District of Charleston, is vacant, submite and shows as follows:
      That he was elected Master in Equity for Charleston District, on the first day of December last; that on the sixth day of the same month, he entered into a bond to the State of South-Carolina, in the penal sum of thirty thousand dollars, conditioned for the faithful performance of the duties of said office; and the said bond was, on the same day, executed by his sureties, who are, as this defendant avers, sufficient and ample for the said sum of thirty thousand dollars. That, by the Act of 1820, the bonds of the Master in Chancery are subject to the approval of the Attorney General, the Comptroller General and the Secretary of State, or a majority of them. That he was not indifferent to the duty of submitting Ms bond to those officers for approval, and that his attention was turned to the same; so early as the day succeeding the day of his election he had a conversation with the Hon. B. K. Henagan, Secretary of State, with a view of procur* ing his attendance for that purpose, and was informed by Mr. Henegan that he would be in Charleston, and ready to attend to that duty, in the course of the following week. That soon after this conversation the said B. K. Henagan left Columbia, as is supposod, for his residence, in Marion District. That, on or before the 12th of the same month of December, having his bond then ready, he wrote to "W. C. Black, then and now Comptroller-General, to apprise him of the fact, and requesting his attendance at Charleston or Columbia, for the purpose of judging of the security tendered. That this letter was directed to Mr. Black, at Columbia, to which place this respondent was informed all official communications should be directed to him; and that he has never any answer received to the said letter. That on or about the 17th day of the said December, and certainly before the 22nd day of Decembor, he handed his bond, thus executed, to Isaac W. Hayne, Esq., Attorney-General of the State, to approve the form thereof, as well as the sufficiency of the sureties. That, as to the form, of which the Attorney-General is tho solejudge, averbal assurance of its being correct was received; but as to the sufficiency of the security, the Attorney-General proposed to consult his associates. That neither the Comptroller-General nor the Secretary of State has attended in Charleston since the 17th day of December last, nor, as far as this respondent is informed and believes, in Columbia. That this respondent left his bond with the Attorney General, to be approved of, both as to the form '¿nd the sufficiency, and believed and believes that his duty was thus discharged. That Vding dissatisfied because he had not his commission, he was advised that the Deputy Secretary of State was competent to exercise the power conferred upon the Secretary of Stat-i by the Act of 1820; whereupon, he requested the Attorney-General to approve his security, which he did. And on the 6th day of Eebru-ary instant, he tendered the band to the Deputy Secretary of State, in Charleston, who approved of the security. On the 8th inst., this respondent lodged the said bond in the Treasury, and sued out his commission as Master-in-Chancery. All which matters this respondent avers to be feme, and submits that he was ready with his security, and tendered his bond, duly -executed, to the Attorney-General within the time prescribed by law; and that ho ought not to be, and is not answerable for the delay in the approving of the same; and that the rule ought to be discharged.
      (Signed,) Edward B. Laurens.
      Eiled 23d April, 1849.
      
        In the Matter of Edward R. Laurens, Esq.. ) ~ , , ,, t Rule to Master-m Chancery. ) show cause.
      Charleston, February, 1849.
      Mr. Laurons’ previous term of office having expired, he was, on the first of December 1848, re-elected by the Legislature. The Court was held for Charleston District, on Monday, the fifth day of February, 1849. The commission of the Master not having been presented on the first day of the Court, was called for by the Chancellor, after hearing the minutes, on Tuesday, the 6th Eebruary. The Master, on the same day, stated to the Chancellor, substantially, as a reason for not having received his commission, all that he has set forth in his answer to the rule, as having occurred prior to that day. He also brought to the view of the Chancellor the case of tho State vs. Yatesi (3 Hill, 230,) under which, he said, he believed it to be the general impression that, if the officer elect tender his bond, signed by himself and his sureties, and tendered to the Commissioners within three weeks, the requisitions of the law were fulfilled.
      The Act of 1820, (6 Stat., 148,) provides that the Master elected for Charleston District shall execute a bond, with good and sufficient sureties, to tho State of South-Carolina, in the sum of thirty thousand dollars, for the faithful performance of the duties of his office; which sureties shall be previously approved of by the Attorney-General, the Comptroller-General, and the Secretary of State, or a majority of them; and the said bond shall be deposited and recorded in the Treasurer’s office, in Charleston. The Act of 1840, (p. 109,) directs that" every Master, Commissioner and Register in Equity, shal^ within three weeks after his election or appointment, tender his bond, duly executed, to the proper officer for approval; and immediately after the same has been approved, shall deposit tho same with the Treasurer, and sue out his commission; and upon his negleot or failure to do so, within the said time, his office shall be deemed absolutely vacant, and shall be filled by election or appointment.”
      
      In the case of the State vs. Yates¡ the respondent had received his commission, and, in giving judgment on the rule, the Court says: “ The condition precedent to tho title of the Sheriff elect to enter upon his office is, that he shall have entered into tho bond, together with such sureties as the Commissioners have affirmatively approved of, within three weeks of his election. And the cause of forfeiture is, the omission to give such bond, with such security, within the prescribed time. It follows, therefore, that the moment that the Commissioners had, on the 27th January, 1836, certified upon the bond their approval of the sureties offered, he (Yates) had provided, and in the language of the Act, perfected the security required, and his titlo to the office attached at that moment. The non-approyal of the Attorney-General, (as to the form of the bond,) or the non-acceptance of the Treasurer, like the delay of recording the certificate of the Commissioners with the Clerk, are merely reasons for a postponement of the practical duties and privileges of the office.”
      On the 6th of February, Mr. Laurens neither had his commission, nor had the sureties to his bond been approved, nor had the bond been tendered to any other of the Commissioners than the Attorney-General. Except under his former commission, the respondent could be regarded in no other light than as a stranger. His regular term of office had expired; and ho had not qualified himself in the manner required by law, for the discharge of his duties under the recent election, with no other light before the Chancellor than these facts, and the law applicable to them, the rule of the 9th of February was entered. It is hardly necessary to say, that the adduction of the commission, with the oaths of office endorsed, puts an end to this proceeding. But it is due to the respondent to add, that his efforts to perfect his title were commenced so soon as he was notified that it was defective, and that they were, substantially, consummated, as appears from the statement in his answer, on the day before the rule was entered.
      It is ordered that the rule of the 9th February be discharged. It is further ordered that the said rule, the answer of Mr. Laurens, and the commission tendered by him, be recorded as part of these proceedings.
      (Signed,) Benj. F. Bunkin.
      Filed, 23rd April, 1849.
    
   The opinion of the Court was delivered by

Munro, J.

In December, 1840, Edward R. Laurens was elected by the Legislature, Master in Equity for Charleston District, and lawfully inducted into office.

On the 3rd of December, 1844, he was again elected ; on the 9th of December his official bond was executed; on the 24th of December it was approved hy the Commissioners, and its form approved by the Attorney-General; on the 31st March, 1845, it was filed in the Treasurer’s office; and his commission bears date, the 7th day of May, 1845 — theouly oath, however, that is endorsed thereon, is the oath prescribed by the amendment to the fourth article of the State Constitution.

In December, 1848, he was again elected to the same office; on the 4th of December his official bond was executed ; on the 7th of February, 1845, it was approved by the Commissioners and by the Attorney-General — was lodged in the Treasurer’s office on the same day; and his commission bears date the 8th February, to which no seal was attached.

In the two first stated cases the actions are against Eliza R. Toomer and W. C. Gatewood, as sureties on Laurens’s official bond of 1844. They rest their defence upon two grounds— 1st, That the said Master did not sue out his commission under the election of 1844, within the time prescribed by law. 2nd, That he did not take and subscribe the proper oaths of office, and cause the same to be endorsed upon his commission. In the last stated case, the action is against Gatewood, as one of the sureties on Laurens’s official bond of 1848 — who also rests his defence on two grounds: 1st, That the bond was not approved and filed in the Treasurer’s office in proper time. 2nd, That the commission issued was no commission — not being sealed.

These several grounds of defence all resolve themselves into the single inquiry, Did it form a part of the contract of these defendants, when they undertook to become responsible for any official default their principal might commit,, during the several terms to which he had been elected, that before their liability should attach, their said principal should strictly comply with all the requirements of the law, so as to constitute himself, before entering upon the duties of his office, in all respects, and in every particular, an officer dejure, and not an officer defacto merely?

The first question here is, the effect of Laurens’s failure to sue out his commission within the time required by law, and to take and endorse thereon the prescribed oaths of office. By the 3rd section of the Act of 1840, (11 Stat. 109) every Master-in-Equity, is required within three weeks after his election, or appointment, to tender his bond to the proper officers for approval, and immediately after the same has been approved, to deposit the same with the Treasurer, and sue out his commission ; “ and upon his neglect or failure to do so rvithin the said time, his office shall be deemed absolutely vacant, and shall be filled by election or appointment, as heretofore provided.” By the fourth section of the Act, he is also required, before entering upon the duties of his office, to take, and subscribe, the oath prescribed by the amendment of the 4th article of the Constitution of this State; also the oath required to be taken by district officers, and endorse the same on his commission ; and unless the said oaths be so taken, endorsed and subscribed within ten days from the issuing of the said commission, the said commission shall be utterly null and void, and the said office deemed absolutely vacant.” In the leading case on this subject, Marbury vs. Madison, 1 Cra. 137, it was held that a commission is not necesssary to the appointment of an officer by the Executive — and the following distinction was taken: That when the appointment to office is evidenced by a public act, “ the performance of such public act would create the officer; and if he was not removable at the will of the Executive, would either give him a right to his commission, or enable him to perform its duties without it.” In the case of the State vs. Billy, a slave, 2 N. & McC. 356, it is said, “that the commission is the mere certificate of election and as to the oath of office it was held) “ the true constitutional qualification, the oath of office, may be taken before or after, and has no essential relation to, or dependence upon, the commission.” In the State vs. Jeter, 1 McC., 233, it was ruled that, “ the tenure by which an office is held does not depend upon the commission which the Governor may think proper to give — it is only evidence of the appointment. The tenure must depend upon the provisions of the Act creating the office, or upon the Constitution.” See also the Treasurers vs. Stevens, 2 McC. 107; McBee vs. Hoke, 2 Sp. 138; Kottman vs. Ayer, 3 Strob. 92. In all these cases the doctrine is affirmed, that the statutory provisions prescribing the manner of executing the bond, suing out the commission, or taking the oaths of office, are merely directory; and that the omission to qualify, by giving the bond, suing out the commission or taking the oaths of office, is cause of forfeiture ; but so long as the officer appointed continues to exercise the duties of his office, his official acts as to third persons are legal.

The remaining point in the inquiry is, Laurens’s failure to file his bond in the Treasurer’s office, within the time prescribed by the Act. To this objection the case of the Treasurers vs. Stevens furnishes a conclusive answer.

That was an action against one of the sureties to a Sheriff’s bond. Several grounds of defence were relied on. One was, that the Act of 1795 required the sureties to be approved by three commissioners — whereas, the bond in question had been approved but by 'two. Another ground was, that the Act declared that the Sheriff should not enter upon the duties of his office, until he had recorded in the Clerk’s office a certificate from the commissioners, that he had executed and lodged in the Treasury his bond, as required by the Act; and that if he failed to comply with these requisites his office was declared vacant.

To the first objection, it was answered by the Court: '‘The injunction is merely directory, and though the total neglect might possibly have afforded a ground for declaring the Sheriff’s office vacated, still, as long as he remained in office, he must be regarded as an officer, and his own failure to perfect his security cannot be pleaded in bar against the consequences of his misconduct, in not discharging his official duties.” To the other objection it was answered: “ It was the duty of the Sheriff to have recorded in the Clerk’s office the certificate of the commissioners. This also is required of him by the Act, and if he did not do so, neither he nor his sureties can take advantage of his wrongful neglect. They are still bound by their bond which was given on their part, and accepted by the treasurers. The end in view, was to obtain security by bond for the officer, and such a bond as the treasurers have accepted: must have been given, and becomes a binding contract. The approval by the commissioners, the certificate, recording, &c., are, besides, no more than mere modes of giving, examining and perpetuating the bond.” Although the doctrine which holds one in office, and exercising its functions to be rightfully there, and, so far as third persons are concerned, legalize his acts, was not questioned in the argument, it may, however, be insisted, that it was inapplicable to the case of Mr. Laurens, inasmuch as there never was a time, from his entry in 1840, to his resignation in 1851, when he held his office under color of title merely, but that during the whole of that time he was holding over de jure, under his qualification and entry in 1840 — that at the expiration of each regular term, he held over de jure, until he could enter de jure — in other words, although he was his own successor, he could not surrender to himself his office under the previous tenure, and enter upon the new term, until he had fully perfected his title by complying with all the requisitions of the law.

This position, it is obvious, is nothing more or less than a counterpart of the case we have just been considering, and rests upon the assumption that the title to the office in question depends entirely upon a strict compliance, on the part of the officer, with all the provisions of the Act creating it; and that a failure in any oue particular, renders his election absolutely void. But it is clear, that such a conclusion cannot be reached, without coming in direct conflict with every respectable judicial adjudication on this branch of the law; for in all of these, to which reference has already been made, we find the doctrine broadly affirmed, that the only effiacy that is imparted to the official title, by a strict compliance with the provisions of the Act- such as the execution of the bond, and filing it in the Treasurer’s office, suing out the commission, and taking and endorsing thereon the oaths of office within a given time — is merely to protect it against forfeiture at the instance of the State. But if, instead of enforcing a forfeiture of the office, the State sees fit to excuse the delinquency of the officer by granting him a commission, the defects in his title, whatever they may be, are thereby completely cured, and if he be already in office, his defacto title is immediately converted into a title de jure, and has relation back to the period of his election; or, if he be not in possession of the office at the time, his right to enter thereon, as against all the world, is unquestionable.

Let us apply this doctrine to the argument which was so ingeniously constructed for the defendants.

While the right of the lawful incumbent in office to resist the entry of his successor until the official title of the latter is perfected, is fully conceded, it is clear, however, that such right can only be practically enforced where the incumbent and the successor are different persons, and that such right, too, can only exist so long as the title of the latter is incomplete; but the moment such title is actually perfected, no matter what may have been the laches or delay that retarded its completion, by a full compliance with all the provisions of the law, the incumbent’s right to resist the entry of his successor is eo instanti at an end ; and this period, whenever it does happen, will form the terminating point of the old tenure, and the commencement of the new.

Let us apply this rule to Mr.. Laurens’s election in 1844— supposing all the time another person to have been the incumbent. On the 3rd of December he was elected. On the 9th his bond was executed. On the 24th it was approved by the commissioners. Up to this time his title was in part perfected. On the 31st March, 1845, his bond was filed in the Treasurer’s office, and his commission was sued out on the 7th of May following. Here, then, were two things which he had omitted to do in order to secure a perfect title to the office — his failure to file his bond in the Treasurer’s office and to sue out his commission, &c., within the time prescribed by the Act.

In that condition of things, and being out of office, as we have supposed, the lawful incumbent might rightfully have resisted his entry, and the State might also have declared his office vacant, and ordered the vacancy to be filled, either by election or appointment, pursuant to the provisions of the Act. But the moment he was permitted to file his bond in the Treasurer’s office, and to sue out his commission, these several delinquencies became completely cured, and his title de facto was rendered as perfect as if there had been a literal compliance with all the provisions of the Act; and any attempt by the incumbent to have resisted his entry would have been rendered as unavailing, as would an attempt on the part of the State to have compelled a forfeiture. The same remarks apply with equal, if not greater force, to the election in 1848.

I now propose to apply the rule to the state of things as they existed upon the several occasions of Mr. Laurens’s elections in 1844 and 1848, and when he united in himself, upon both occasions, the two-fold characters of incumbent and successor. In December, 1844, his office, as we have seen, was declared vacant by the Legislature, when he became a candidate for re-election. On the 3d of December he was elected, and on the 9th executed his official bond. On the 24th day of the same month the bond was approved by the Attorney-General, the Comptroller-General and the Secretary of State. Being all this time in possession of the office, and having perfected his security, he exhibited a complete de facto title — -the only title, by-the-way, in which the public has any interest, as can well be imagined, and one which neither Mr. L. nor his sureties can be permitted to repudiate; for to do so, would be not only to sanction a fraud upon the community, but upon the Legislature. The only acts he omitted to perform, in order to complete his de jure title, were the filing of the bond and the suing out of the commission. These were matters, however, which alone concerned the State, and with which the public had nothing to do. But the moment the bond was filed and the commission sued out, the breach between Mr. Laurens and the State was completely healed, and his title de jure fully perfected. But it is said, At the expiration of each regular term he held over de jure, until he could enter de jure.” There was certainly nothing which rendered it imperative on Mr. L. to hold over under his de jure title. It was certainly competent for him to have resigned his office at the expiration of his old term, and to have entered under his de facto title under the new ; and was it not equally competent for him, although the incumbent, without going through the idle ceremony of a formal surrender, to do the same thing — although in a different manner ? But if Mr. L. failed to remove the only obstacle in the way to his regular entry under a de jure title, it was clearly occasioned by his own laches; and is not this objection, if objection it be, encountered by the legal maxim, that a party is not permitted to take advantage of his own wrong. Or, as was said, in the case of the Treasurers vs. Stevens, “It was the duty of the Sheriff to have recorded in the Clerk’s office the certificate of the commissioners. This also is required of him by the Act, and if he did not do so, neither he nor his securities, can take advantage of the wrongful neglect.”

If we refer to the course pursued by Mr. Laurens under his election, in 1848, we will find, if any thing, less of laches, and clearer indications of an abandonment of the old, and an acceptance of the new tenure, than on the former election. On the 1st day of December in that year, he was again elected to the same office. On the 6th day of the same month, his official bond was executed. On the 9th day of February, 1845, a rule was ordered against him by Chancellor Dunkin, to show cause why his office should not be declared vacant for failing to produce his commission on the first day of the term. In his answer to the rule, instead of relying on his de jure title and entry under his election in 1840, he vindicates himself against the charge of laches, by showing that he had used all proper diligence to perfect his title, but had been prevented by circumstances beyond his control. The defect in his de jure title was however remedied by the filing of his bond in the Treasurer’s office on the 8th day of February, and the suing out his commission on the same day; and if the commission was really defective, it was such a defect as could by no means avail the defendants.

But conceding the official titles of Mr. Laurens to hayebeen defective, it is clear, both upon principle and authority, that such defects cannot be pleaded in bar by the sureties, to an action on the official bond for a default committed by their principal ; for what was said in the case of the- Treasurers vs. Stevens, in reference to the office of Sheriff, is strictly applicable to the case under consideration: “ When we reflect that the bond and security, the approval, the certificate and recording, are all proved and done by the Sheriff after his election, and before he shall enter upon his office — that these are all acts required strictly of him, we cannot but foresee the great damage of permitting him, or his sureties, deriving advantage from any error, or omission, either in the bond, or in the manner of giving or recording it.”

It is therefore the unanimous opinion of the Court that the motions for a non-suit, and for a new trial, in all the cases, should be dismissed; and it is so ordered.

O’Nball, Wardlaw, Withers, Whitner and Glover, JJ., concurred.

Motions dismissed.  