Ordinary v. Smith

Jackson, Judge. This was a suit on a guardian’s bond by Kinnebrew and wife against Smith and his securities. The declaration alleged, in substance, that Smith invested the funds of his ward in certain real estate, and then sold the real estate, getting his father to make the deed, and pretended to invest the proceeds in Confederate bonds; that no order of the judge of the superior court, under the act of 1863, or otherwise, was obtained to authorize such investment, and that Smith really converted these proceeds to his own use. The declaration alleged that the wife of Kinnebrew, who’ was the ward of Smith, became of age in 1864, and married in 1868; but that the facts in conection with the investment and use of the fund were not discovered by the plaintiffs until after the 1st of January, 1870. The allegations in the declaration are not so full and specific as they ought to be, but the substance is set out above. The defendants replied by general demurrer to the declaration, and by the plea of the statute of limitations of 1869 requiring all suits to be brought by the 1st of January, 1870, and the court sustained this defense on the face of the pleadings, and held that the act of 1869 barred the right of recovery. The question is, does that act bar this suit, or is it within the exception which exempts from its operation guardians who have acted fraudulently and corruptly ? [17] 1, 2. We think, taking the facts for true, which the demurrer and plea admit, no proof having been introduced on either side that the case comes within the exception. The declaration, though loosely and imperfectly drawn, makes a case of fraud, of moral, and therefore, we think, corrupt fraud; and if the specifications be not technically and precisely drawn, a special demurrer would have the effect of making them so, or of giving the plaintiff an opportunity of making them so by amendment. On the whole, we think the case had better be tried on its merits. If the allegations cannot be sustained by proof, the defendant will not be hurt; if it be true that he did not really invest his ward’s money in Confederate bonds, but used and enjoyed it himself, and only pretended so to invest it in order to cover up the fraud, then he ought to be hurt. Of course in this opinion, we base our judgment purely upon the facts alleged, which the general demurrer and plea admit to be true. The real facts, when proven on the trial) may make a ease totally uulike that which this record discloses. Let the judgment be reversed.