Center v. Finch

It is, we think, the better practice that a bond of the kind in *149question, should, be executed after the order is granted, and should refer to it. But a bond is not void because it was signed and acknowledged previously. Undertakings on attachment and appeal are executed before the attachment is issued or the appeal taken. There is nothing in the bond in question which necessarily implies that the guardian had been previously appointed. If the bond had recited that application was about to be made to appoint Finch guardian for the infant, the language of the rest of the bond would not have been inappropriate, as it now stands, “ if he shall faithfully discharge the trust reposed in him,” &c. No one would have insisted that the language must, in that case, be “ which shall be imposed,” &c. The date and acknowledgment are not conclusive evidence as to the time of delivery. The delivery is shown, by the approval and the iiling, to have been after the application had been made and granted. The bond took effect then, and is valid.

Again: the question as to the effect of an accounting by the guardian, so far as the sureties are concerned, is not before us. We have only to inquire whether the guardian, as respects himself, has accounted and been found in arrears, or has failed to obey the order of a court having jurisdiction. A petition was presented alleging that the guardian had received certain moneys and had appropriated them to his own use, and asking that he be required to account, &c. On this an order was granted, requiring him to make a full report of his proceedings and render an account of the funds which had come into his hands, and to show cause why an order should not be made requiring him to pay into court the avails of the sale of real estate, &c. The petition and order were served personally on the guardian. He failed to appear at the return day of the order. This was an admission on his part of the truth of all matters stated in the petition. It was an admission that, to the extent menticned, he had been guilty of violating his trust and of appropriating trust funds to his own use. No further accounting was necessary. The infant had claimed a certain amount to be due her, and the guardian thus admitted this and also admitted that he had appropriated the money. Thereupon he was ordered to pay the amount into court..

What further accounting need be had ? The guardian admits *150the receipt of so much money. That is enough to charge him; and it is of no consequence whether he received it in one sum or in a dozen. To discharge himself, he admits that he has appropriated this money to his own use. That does not discharge him. The court then orders him to pay this money into court, and he refuses to do so.

The judgment should he reversed, and there should be a new trial, costs to abide the event.

Judgment reversed, new trial granted, costs to abide event.