68 Ill. 140 | Ill. | 1873
delivered the opinion of the Court:
This was an action of debt, brought in the circuit court of Marion county, by The Board of Trustees of Schools against James McHaney and Britton Smith, upon the official bond of McHaney. By agreement a jury was waived, a trial was had. and judgment rendered by the court in favor of plaintiff for penalty of bond, $4000, to be discharged on payment of the damages, $69.92. The defendants bring the case to this court by writ of error.
By the agreed state of facts, as shown by the record, it appears that James McHaney was, on the 15th day of April, 1867, appointed treasurer of schools in township three north, range two east, in Marion county, and gave bond, with Brit-ton Smith and S. J. Boring as sureties; that while he was treasurer a note came into his hands, as such, for $55, dated October 1st, 1866, due in 12 months, with interest, against James H. Dorris, John Wright and Britton Smith, payable to the trustees; that James H. Dorris was the principal maker of the note, and the other two signers were his sureties; that James H. Dorris died June 20th, 1868, and on the 17th of August, 1868, Wm. C. Dorris was appointed administrator of his estate; that the day fixed for adjustment of claims against the estate was the 13th of January, 1869; that James McHaney did not appear and have the note probated and allowed against the estate on that day, or at any other time; that after the death of Dorris, his administrator paid the interest on the note to McHaney.
On the 29th of April, 1870, Thomas Alimón was appointed treasurer of schools, as successor to McHaney, to whom he delivered over this note and all books, papers, etc., belonging to the office; that there was no order made by the trustees of schools, while McHaney was in the office, that the note against Dorris should be collected or further secured.
It is claimed by the defendants in error that it was the duty of McHaney, the treasurer, to present this note on the daxappointed by the administrator for the adjustment of claims, and have it alloxved against the estate of James H. Dorris. There can be no doubt but it was the duty of the treasurer to have appeared and had the claim allowed on the day appointed for the adjustment of claims, under section 60 of Gross5 Statutes, page 702.
It is also claimed that, on failure of the treasurer to perform the duties enjoined on him by law, he is liable to the trustees in an action on his official bond. This is no doubt true, under section 64, page 703, Gross, but the main question in this case is, while, technically, the trustees had a right of action on the official bond of the treasurer, what, in law, in this case, can plaintiffs recover?
There is no evidence in the record to show that there has been any loss to the trustees on account of the treasurer failing to have the note probated. There is nothing to show that a single dollar could or would have been collected by having the note allowed. It does not appear that the securities on the note have become insolvent. No damage or loss whatever is shown by the failure of the treasurer to discharge his duty.
It is stated in the brief of plaintiffs in error that in this case it is sought to make the defendants liable for the full amount of the Dorris notes, under an act passed March 4th, 1869, on page 684, section 9, Gross. This statute requires the pavee of a note, on the death of the principal maker, where there are sureties, to present the note for probate within two years after the granting of letters of administration, and on failure to do so, provides that the sureties are released.
This statute has no application to this case. The note against Dorris was due on the 1st day of .October, 1867. Dorris died in 1868; and the time fixed by his administrator to adjust claims against his estate was on the 13th of January, 1869. The foregoing law was not passed until March 4th, 1869.
This statute can have no effect on the note against Dorris, which was in the hands of the treasurer. The general rule is, a statute is to operate in futuro only, and will not be construed to affect past transactions. A retrospective effect will not be given it unless _ it clearly appears that such was the intention of the Legislature. Thompson v. Alexander, 11 Ill. 54.
We can see no reason why the sureties are not still liable on this note, and as no loss or damage has occurred on account of the failure of the treasurer to present the note for allowance on the day set for the presentation of claims, the judgment of the circuit court was wrong in finding the damages at the amount of the note and interest. The plaintiff was only entitled to recover nominal damages.
The judgment is reversed and the cause remanded.
Judgment reversed.