25 Ill. 500 | Ill. | 1861
This was a scire facias on a recognizance. A plea of non est factum verified by affidavit was interposed. On the trial in the court below it appeared in evidence, that the justice of the peace before whom the recognizance was taken, without the knowledge or consent of plaintiff in error, struck out his name, as it was originally inserted, in the condition of the recognizance, and inserted the name of George Vincent. This, it is contended, was such a change as released the cognizors. As it was originally executed, the recognizance was for the appearance of the plaintiff in error, and George was his cognizor, whilst by the change, plaintiff in error became the cognizor, and George the principal. This was certainly material, as it wholly changed the obligation.
As it was executed by the parties, it required plaintiff in error to appear to answer the charge, and George bound himself that plaintiff should so appear, but as it now stands, plaintiff is bound for George’s appearance. For aught we know, plaintiff in error may have been perfectly willing to bind himself to appear to answer the charge, and not willing to bind himself that George should. We must look alone to the instrument to see what the parties intended, and we have no right to hear evidence that a mistake had occurred. If that was the case, a court of chancery may give relief by reforming the contract, but the justice of the peace, unauthorized by the parties, had no such power, nor had the court below, on evidence adduced, any power to confirm his unauthorized act. We are clearly of the opinion that the alteration was material, and that when made, the recognizance ceased to be the deed of plaintiff in error, and that the court below erred in rendering judgment against him.
The judgment is reversed, and the cause remanded.
Judgment reversed.
