Carr v. Moore

Perkins, J. Debt upon a bond given to a school commissioner to secure a loan from the school fund, against Carr, the principal in the bond, and Parr and Athon, the sureties. Carr made default. Parr pleaded non est factum, and it being conceded that, as to him, the bond was a forgery, his name was stricken from the writ and declaration, by way of amendment, and the cause proceeded against the other defendants. Athon pleaded that the bond was obtained from him by fraud. Issue, trial, and judgment for the plaintiff. J. G. Marshall, for the plaintiffs. J. Dewey, for the defendant. The following are the facts : The names to the bond were in the following order, viz : Carr, Parr, Athon. “It was admitted that the signature and seal of Parr were forgeries; that the names of the obligors in the body of the bond were in the hand-writing of James Boyer, at the time of the execution of this bond school commissioner of Clark county; that said bond was, by said Boyer, before the sealing thereof, delivered to said Carr, to be perfected; and that the same was, by said Carr and Athon, re-delivered to said commissioner as their act and deed.” It is claimed by Athon that, when he signed the bond, the name of Parr was already to it as surety; that he, Athon, signed it simply as co-surety with Parr, when the latter was not in fact liable; and that this circumstance amounts to a fraud upon him, Athon. Had it been shown that the school commissioner who took the bond presented it to Athon for signature with the name of Parr already upon it as such, perhaps it might have been regarded as a representation, by said commissioner, that Parr had executed the bond, and have amounted to fraud. But this fact is not shown. For aught that appears, Athon may have known, when he and Carr delivered the bond as their deed, that the name of Parr was a forgery. And had Carr induced Athon by fraud to execute the bond, still the school commissioner, being ignorant of the fact, could not, we suppose, be affected by it. At all events, the evidence does not show that any one misrepresented the facts to Athon. See The State v. Van Pelt, in this Court, November term, 1848 (1), and Harter v. Moore, 5 Blackf. 367. Per Curiam. The judgment is affirmed with 1 per cent. damages and costs. Footnotes [(1)] See 1 Garter’s Ind. R. 304,