8 Ala. 781 | Ala. | 1845
This is a suit against the sureties of a guardian, upon his official bond, by the Judge of the County Court for the use of the ward. No judgment has been obtained against the principal in the bond, but as an excuse for not ascertaining the amount in his hands, it is alledged'that the guardian has wasted the assets, and absconded from the State.
At the time this suit was brought, our statutes did not provide any means for the settlement of a guardian’s account, when he had left the State. This has been remedied by the act of 1843, [Clay’s Dig. 230, § 47,] which authorizes the Judge of the Orphans’ Court, when the executor, administrator, or guardian removes beyond the State, and fails to appear, and settle his accounts, to state the account himself, and render a judgment against him ex parte. v
We do not consider it necessary’to enter upon the enquiry, whether, in this case, a sufficient excuse is not shown for not ascertaining the amount in the guardian’s hands, previous to a suit on the bond, because so long as the relation of guardian and ward subsists, the latter cannot maintain an action at law against the- former.
The removal of the guardian from the State was, doubtless a sufficient reason .for severing that relation, and upon application to the Orphans’ Court, the letters would have been revoked, and under the existing statute, upon application, the account can also be settled, after which no obstacle willl exist to a suit on the bond.
From this, it appears, the suit was prematurely brought, and the demurrer to the declaration was properly sustained.
Let the judgment be affirmed.