73 Ala. 70 | Ala. | 1882
— The appellants are' sued as sureties on the official bond of one Appling, who wjas judge of probate of the county of Henry. The action is based on the alleged conversion by him, during his life-time, of the sum of eighty-seven dollars and fifty-three cents, paid to him on a decree
It is provided by statute, that the judges of probate of the several counties in this State be constituted the custodians of funds belonging to minors,-in certain specified cases, where the amount belonging to each minor does not exceed one hundred dollars.- — Code, 1876, § 2809. There seems to have been no controversy in the court below as to the fund here sued for being brought within the purview of the statute.
It is insisted, however, that the sureties can not be made liable in this action, unless there was a demand for the money made upon the principal. ‘ Such might be the rule in the absence of the averment of a conversion of the money, by appropriation to the principal’s use, or otherwise. This fact, however, if true, would clearly fix the liability of the sureties, as it would constitute a breach of the principal’s duties imposed by the bond. In such cases, there is no necessity for a demand. The purpose of a demand and refusal, in ordinary cases of bailment, is but to furnish evidence of a prior conversion, and is, of course, unnecessary when the conversion is otherwise proved. — 2 Greenl. on Ev. § 644.
We can not assume that the removal of the plaintiff from Georgia to Alabama ipso facto vacated his administration in the former State, in which jurisdiction he seems to have acquired his letters of authority. The statute laws of other States are matters of evidence, and must be proved as other facts. We can not judicially take notice of them. — Drake v. Glover, 30 Ala. 382. Presuming, therefore, as we must in the absence of all proof, that the rule of the common law prevails in the State of Georgia, the removal of the plaintiff to Alabama did not even operate to disqualify him for the office of administrator, much less to absolutely vacate the office. The well settled rule of the common law was, that even an alien could be an executor, or administrator, and non-residence neither worked legal incapacity, nor furnished ground for removal. — 1 Williams on Ex’rs, 187, 368.
There is no force in the suggestion, that a demand on the principal during his life-time was necessary in order to create a liability on the sureties for interest ón the fund in dispute. Interest is usually considered as the legitimate fruit of principal, and is often allowed in the nature of damages for detention. Where money" is wrongfully converted by appropriation to one’s use, the amount converted, with interest, is the lowest authorized measure of damages. — Ewart v. Kerr, 2 McMullen, 141; 2 Greenl. on Ev. §§ 276, 649. The liability of the sureties, in such cases, is very clearly commensurate with that
In our opinion, none of the assignments of error appearing upon the record are well taken.
Affirmed.