State ex rel. Adams v. Quinn

Whenever the relation of guardian and ward is proved or admitted, either party has a right to an account, unless the action be barred by the plea, “ insimul computassent,” that is a full settlement, or a release of the cause of action, or the statute of limitations. In our case, no settlement or release is alleged, and the statute of limitations is only relied on as to the sureties ; so the defendant Quinn has no ground on which to object to a reference for an account of his “ actings and doings ” as guardian, and his Honor erred in sustaining the demurrer. The complaint makes a direct charge of fraud committed.by the-» defendant while act*363ing as the guardian, of the plaintiffs, in that he sold land and-other property of his wards in the State of Arkansas and failed to make any return of the moneys received except a small sum. This charge of fraud is admitted by the demurrer to be true, and the defendant is thus put in a very unenviable: light before the court, for the object of a demurrer is to avoid an answer. Without more saying, the plaintiffs are entitled to have an answer and to an account, when upon exceptions, the matter in controversy will be brought squarely before the-court.

His Honor was of opinion that the sureties on the guardian bond were discharged by the statute of limitations, as “ the-breach complained of” occurred since the adoption of the-C. C. P. This point is not now presented and must be made-' by answer.

The other exceptions are on “ the skirmishing line ” and1need not be noticed, as all can be cured by amendments.

Error. This will be certified.

Pee Cueiam. Judgment accordingly-