State ex rel. Towler v. Shackleford

Chalmers, J., delivered the opinion of the court. The pleadings present the question whether the sureties on a guardian’s bond are liable for the value of the property belonging to the ward, which had been, by the guardian, sold and converted to his own use before the time of the execution of the bond. We answer the question in the negative. Penal bonds are never held to be retrospective in their operation, unless plainly so intended and expressed. The bond here sued on is manifestly prospective only. It is the settled doctrine of the Supreme Court of the United States that the sureties on official bonds of receiving and disbursing officers of the government can only be made liable for public money received before the date of the bond by averring and proving that the money was actually in the hands of the officer, and held by him as public money, at the date of the execution of the bond. If before that time it has been squandered or converted by the officer to his own use, the sureties are not bound, unless the letter of the obligation unmistakably indicates the assumption of liability for the past; Farrar & Brown v. United States, 5 Pet. 374; United States v. Boyd, 15 Pet. 206; s. c., 5 How. 30. There are no conditions in the bond here sued on which indicate any assumption, by the sureties, of past liabilities on the part of the guardian. In The State v. Hull, 53 Miss. 626, the bond sued on was held, under the statute, to be merely cumulative of the old one, and, necessarily, the new sureties made themselves liable to the same extent as were the old ones. It was just as if they had signed the old bond. It is insisted that, by the terms of the bond, the sureties were liable for the guardian’s failure to account with the court, and that the declaration (second count) averred a breach of duty in this respect. But the breach assigned is for a failure [652] to account with the court for the value of the property converted before the execution of the bond. The sureties, not being liable for the value of the property converted, are not liable for the failure of the guardian to render an accotint of it. Affirmed.