Governor ex rel. Thomas v. Bowman

Hr. Chief Justice Breese delivered the opinion of the Court: Host of the questions presented by this record were considered and decided in the case of The Governor, for the use of Thomas, v. Lagow, 43 Ill. 134, which was an action against one of the sureties on this same bond. Ho points are made here that were not made in that case. As we held in that case, so we hold in this, that the sureties in this bond are responsible for all defalcations of Ryan which occurred prior to the act of 1849, and that act did not suspend the right of action on the bond. Suit might have been brought upon it at any time, notwithstanding the extension of time after Ryan failed to burn and cancel the notes in his hands and report to the governor. For this breach the liability of the sureties had attached, and it was in no degree enlarged by that act. For breaches occurring after the extension of time the sureties are not liable. The defendant had judgment on demurrer in bar of the action, while it appears the first breach in the declaration was not answered. The fifth and sixth pleas only purported to answer the second and third breaches. The first breach ■that .the notes and certificates were not burned and canceled, ■-and a:report thereof made to the Governor, and of the moneys in Ryan’s hands, not having been answered by plea, the .plaintiff was entitled to a judgment on that breach, and to have his damages assessed, for that breach is alleged to have occurred prior to the act of 1849. Those damages would be the value of those notes and certificates, and such damage as was occasioned by the neglect to report, and the failure to pay over the moneys in Ryan’s possession. Without going over the ground traversed in the case referred to, the judgment in this case must be reversed and the cause remanded, with leave to either party to amend their pleadings, and for further proceedings consistent with this opinion. Judgment reversed.