Clinton County IL Archives Court.....Ammons, V The People 1849
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 21, 2008, 11:55 pm

Source: Reports Of Cases Illinois
Written: 1849

Jefferson Ammons v. The People, use of etc. 

Appeal from Clinton.

1. Judgment — of probate court conclusive. An order of a probate court, 
directing a guardian to pay over to his successor a certain amount in his 
hands, belonging to the ward, is conclusive upon the guardian, unless the 
order can be impeached for fraud or collusion.(l)

2. Guardian — surety on bond — relation back. William C. Neely, as guardian, 
was ordered, by the probate court, to give supplemental security on his bond, 
already executed. Ammons signed and sealed said bond as such security. Held, 
that Ammons became liable as an original obligor.

Debt on bond brought in the name of the people to use of Hoke, guardian etc., 
against Ammons, who was one of the sureties upon a guardian's bond. The case 
came on to be heard at May term, 1849, before Underwood, judge, and a judgment 
was rendered for plaintiff for $109.40. Appeal by defendant.

S. Breese and G. Koerner, for appellant. T. J. Lecompte, for appellee.

Caton, J. This action was commenced against one of the sureties, upon a 
guardian's bond, dated in 1837. And, the only breach assigned is that the 
guardian refused to pay over to his successor the sum of $86.83, in obedience 
to an order made on the 9th day of January, 1845, by the probate court of 
Clinton county. The defendant filed several pleas. To the second and fifth of 
which a demurrer was Sustained; of which the appellant now complains.

The second plea denies that any money ever came to the hands of the guardian, 
belonging to the ward. This plea is insufficient. That question had already 
been tried by a court of competent jurisdiction, which had determined and 
adjudged that the guardian was liable to pay over to his successor the sum of 
$86.83, either for money received or effects unaccounted for, belonging to the 
ward. The plea may have been true, and the adjudication still proper and just. 
He may have received effects other than money to that amount, for which he had 
not accounted. This was a lawful order of that court, which, by the very terms 
of the condition of the guardian's bond, his sureties undertook that he should 
comply with. This was an adjudication obligatory as well upon the sureties as 
upon the guardian himself; unless, indeed, they could impeach it for fraud or 
collusion.

In the fifth plea, the defendant avers that he was not originally a party to 
the bond, but that, on the 16th of January, 1844, "the court of probate made 
an order on the said William C. Neely, guardian as aforesaid, requiring him, 
the said Neely, to give supplemental security on said bond, signed and 
executed as aforesaid." He then avers that on that day "he signed and sealed 
said bond as supplemental security as aforesaid." The plea then further avers, 
that Neely had faithfully discharged his duties as guardian, and had rendered 
a just account of his guardianship, from time to time, to the probate court as 
required, and had complied with all the lawful orders of the court, relative 
to the goods and chattels of the ward that came to his hands since the last 
mentioned day; and that neither at the time when the defendant executed the 
bond, nor subsequently, had the guardian any money or effects in his hands 
belonging to the ward. The sufficiency of this plea depends upon the question, 
whether the defendant became liable as an original obligor. That such was the 
intention of the parties, and the legal effect of the undertaking, we have no 
doubt. The guardian, with certain sureties, had, in 1837, executed this bond, 
and in 1844 he was required, not to give a new bond with other sureties, but 
to give supplemental security on this bond, and, in obedience to that order, 
the defendant executed and became a party to the old bond, without any change, 
either in its date or in any other respect. This clearly manifests the 
intention, that the liability of the defendant should be the same as if he had 
signed it at the same time with the other parties to it. It is but a question 
of intention, to be gathered from the nature of the transaction. The bond, at 
the time he executed it, was already an existing obligation, and had been for 
years binding upon the guardian and his other sureties, and we are not to 
suppose that they intended to create a new and independent obligation so that 
the same instrument would impose different liabilities upon the various 
parties to it. Indeed, unless we hold the liability of the defendant to be 
that of an original obligor, we must decide, in effect, either that the bond 
ceased to be obligatory upon the original parties, or that it never was 
binding upon the defendant. Necessarily the bond must impose the same 
obligations upon all the parties that are bound by it. (Suppose the other 
obligors had been sued in this action with the present defendant, this plea, 
if sustained, would have been as available to them as to him, for in this form 
of action the recovery must be against all of the defendants or none — unless 
where a personal defence is interposed, such as infancy or bankruptcy; and the 
same amount must be recovered against all. Indeed, the execution of this bond 
by the defendant, was entirely a nugatory act, or else his liability upon it 
is the same as if he had executed it at the same time with the others, and is 
identically the same as theirs. The demurrer was properly sustained to both 
these pleas. There is no other question presented by this record, worthy of 
serious consideration. The judgment of the circuit court is affirmed with 
costs. 

Judgment affirmed.

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(1) And conclusive on his sureties, Kalston v. Wood, 15 Ill., 159; Formerly an 
order on the application of an administrator for leave to sell realty was not 
conclusive on the heirs, not made parties, Stone v. Wood, 16 Ill., 177; 
Hopkins v. M'Can, 19 Ill., 113; Moline Manuf. Co. v. Webster, 26 Ill., 221; 
but by the revision of 1874, a change has been wrought in the law, in respect 
of this, which renders the older decisions inapplicable; Gibson v. Roll, 27 
Ill., 88, 90; compare R. S., 1845, stat. of wills, § 103, with R. S. 1874, pp. 
121-3, §§ 98-106.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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