Kagay v. the Trustees of Sch. of T. 8 N.
| Decision Date | 30 June 1873 |
| Citation | 68 Ill. 75,1873 WL 8279 |
| Parties | ABRAHAM B. KAGAY et al.v.THE TRUSTEES OF SCHOOLS OF T. 8 N., R. 6 E. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HEREAPPEAL from the Circuit Court of Effingham county; the Hon. HIRAM B. DECIUS, Judge, presiding.
Messrs. COOPER & KAGAY, for the appellants.
This was an action of debt, brought in the name of the trustees of schools of township number eight north, of range six east, in Effingham county, Illinois, against the treasurer of the township and his surety, on the official bond of the former, for a breach of official duty in failing to pay over money in his hands as such treasurer, to his successor in office.
Judgment was rendered in the court below against the defendants, and they appealed.
The defendants below moved to quash the writ because it claimed no sum as debt, whereupon the court allowed the writ to be amended on a cross-motion by the plaintiff, by inserting debt $10,000, and denied a motion thereupon made by the defendants for a continuance of the cause. These rulings of the court are assigned as error.
The allowance of the amendment was a matter of discretion with the court, and we think the discretion was not improperly exercised. The amendment was not of such a character as reasonably to surprise the defendants to their prejudice, and the motion for a continuance was properly denied.
It is next objected that the court erred in permitting the bond to be read in evidence because of a variance between it and the declaration.
The bond is to the board of trustees of the township, etc., whereas the suit is in the name of the trustees of schools of the township, etc., the declaration alleging the bond to have been made to them, and herein it is claimed there is a variance.
The bond is in the form prescribed by the statute. The declaration avers that it was made to the plaintiffs by the name of the board of trustees of the township, etc. The statute constitutes the three trustees of schools of the township a body politic and corporate, by the name of “trustees of schools of township,” with power to sue, etc. The trustees of schools and the board of trustees are the same officers. We perceive no force in the objection.
It is insisted that the surety here is not liable because the default occurred before he entered into the bond. His principal had been township treasurer ever since December, 1865. The bond in suit was executed on the 12th...
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