Cassady v. Trustees of Schools

Citations

• 105 Ill. 560
• 1883 Ill. LEXIS 122

Syllabus

<p>1. Official bonds—sureties—evidence—condition of liability of surety on school treasurer’s bond—principal not served. The sureties on a school treasurer’s bond, in an action thereon, can not object to evidence showing a breach of the conditions of the bond by the principal because he has not been served with process, or is not within the jurisdiction of the court, or because his defalcation has not been established by a judgment against him. The obligation of a surety, on such bond is not collateral, but a direct one.</p> <p>2. So the want of service on the principal, in an action on a school treasurer’s bond, will not affect either the quantum or character of proofs necessary to make out a case against the sureties. Whatever would show a breach of the condition of the bond by the principal will establish the liability of his sureties, whether he is in court or not.</p> <p>3. Same—obligation is joint and several. Section 13, chapter 103, of the Revised Statutes, relating to official bonds, in effect says, that for any breach of such a bond a suit may be brought, and prosecuted to final judgment, against the principal and his sureties, or any one or more of them, or against one of the sureties or any number of them less than all, or against all the sureties, without first obtaining judgment against the principal.</p> <p>4. Same—when liability of surety is secondary-—construction of the statute. Section 14 of the same law has no application except to cases where a judgment has been obtained against the principal and some one or more or all of the sureties. In such case the officer is not permitted to levy on the property of the surety or sureties until he has exhausted the property of the principal. When the plaintiff has been unable, or has failed, to obtain judgment against the principal, that section has no application.</p> <p>5. Same—evidence against swreties—entries by school treasurer in his record. The entries made by a school treasurer in the books of his o