27 Ill. 173 | Ill. | 1862
This action was on the office bond of a master in chancery, against one of the sureties, whose name appears to the bond. The bond is joint and several. The facts relied upon in defense are these: In the body of the bond are three sureties named—first, Heaton; second, Seely, the defendant; and third, Morrow. When presented to the defendant for his signature, the name of Heaton appeared signed to the bond as a surety; and the defendant, supposing it to have been executed in fact by Heaton, signed his name to the bond as a co-surety with Heaton. It turns out that the name of Heaton to the bond was a forgery. Although we have not been referred to, nor have we met with, a case precisely in point, yet we think upon principle, this should constitute a good defense to the action on the bond. By a fraud practiced upon the defendant, by means of the commission of a high crime, he was made to assume a different and greater liability than he intended, or supposed he was assuming, when he executed the bond. It is not like the case where the surety, when he signs the bond, is assured, and made to believe that others will afterwards sign it. In that ease he acts upon the simple assurance that another will do an act which he knows may be defeated or prevented by various accidents, and he must therefore take the risk of such assurance being fulfilled. But in this case he acted upon an apparent fact, which without the commission of a great crime by others, must have been true, and the commission of this crime the highest degree of caution might not suggest; and he cannot be charged with even slight neglect, in not having discovered the forgery. It cannot be said that his own credulity contributed in any degree to his being bound without Heaton, instead of with him. It is true that the obligee did not perpetrate, or in any way contribute to the fraud, so that one of •two innocent parties must suffer, by reason of this forgery, but that reasonable degree of favor" which the law extends to sureties, should exonerate the surety who has been fraudulently induced to execute the bond, not by' a false promise, which a high or even a reasonable degree of prudence should have admonished him not to rely upon, but by a forgery, which would probably have deceived the most cautious person.
The judgment must be reversed, and the cause remanded.
Judgment reversed.