102 Ill. 434 | Ill. | 1882
delivered the opinion of the Court:
The fourth plea is clearly bad. The allegation is, that the bond was not executed at any time within sixteen years before the commencement of this suit. There is no statute rendering the lapse of sixteen years from the date of the instrument a bar to the action. The statute applicable to an action of this kind upon a bond of that date, says: “Actions on bonds * * * shall be commenced within sixteen years next after the cause of action accrued. ” It does not say within sixteen years after the execution of the bond. The cause of action is not the making of the bond. No action accrued upon the making of the bond. The cause of action consists of the execution of the bond, in combination with the breach of the condition of the bond. It requires both the execution of the bond and the breach of the bond to constitute a cause of action.
The ninth plea is also bad. It professes to be a plea to the first and fourth breaches assigned in the declaration. Such a plea, to be good, must answer both of the breaches mentioned. It is not sufficient that it may furnish a good defence to one of the breaches. The first breach assigned is, that the guardian had converted to his own use a large amount of the moneys of his ward. It is no answer, finder our laws, to such a charge in the declaration, to say that no adjustment was ever had of the accounts of the guardian by the probate court, and that the guardian had not been ordered by that court to pay to the ward in life, or to the administrator of her estate after her death, any sum of money, and that the guardian had never been cited to appear before that court and make a settlement of his guardianship. Our statute provides, that whenever the condition of the bond of any guardian shall be violated, suit may be instituted on such bond, and prosecuted to final judgment against such guardian and any and all of the sureties, or against one or more of them, “without first establishing the liability of the principal by obtaining judgment against him alone, ” and that it shall not be necessary to a recovery that a devastavit should have previously been established against the principal.
"Whether, in a case where a guardian has simply failed to pay over and continues to hold funds of the ward, it is or is not necessary that his accounts be first settled in the probate court, or that he fail to make such settlement after citation, before an action at law can be maintained upon the bond, we are not called upon here to decide. In this ease the declaration charges expressly that he converted to his own use the money of his ward. This allegation is not denied by any plea on file. Being a material allegation in the declaration, it is admitted, for the purposes of that plea, by every plea which does not deny it. We do not decide that the mere retention of the custody of the ward’s money, without an order of the probate court to pay the same, would of itself constitute a conversion to the use of the guardian. No question of that kind arises here, for it is confessed of record in this ease that the guardian did so convert the money of his ward.
The statutes of limitation relied on for the support of the tenth, eleventh and twelfth pleas, have no application where the cause of action would not be barred in the absence of these statutes, and hence have no application here.
The judgment of the Appellate Court is therefore affirmed.
Judgment affirmed.
