Citations
- 138 Ill. 322
Full opinion text
Mr. Chief Justice Magruder
delivered the opinion of the Court:
This is an action of debt brought in the Circuit Court of LaSalle County by the People, for the use of Cornelia A. Munson, against Arthur T. Bartels and his sureties upon the official bond of the said Bartels as clerk of the Probate Court of LaSalle County. The defendants demurred to the declaration ; the court sustained the demurrer and rendered judgment against the plaintiff for costs; plaintiff elected to abide by her declaration, and excepted to the ruling of the court. The Appellate Court has affirmed the judgment of the Circuit Court, and the case is brought up for review by writ of error from this Court to the Appellate Court.
The declaration consists of four counts. The first count alleges that Bartels was clerk of said court from December 4, 1882, to December 4, 1886; that on the former date he executed his official bond .conditioned to “well and faithfully do and perform all the duties of said office;” that, on September 28, 1886, said Bartels assumed to take the acknowledgment of a mortgage of that date, purporting to be executed by one Alva B. Goodrich, a widower, of LaSalle County, to George W. Bavens of Ottawa, to secure a note for $2500.00 of same date payable to order of said Bavens upon land in that county; that Bartels attached his official certificate to said mortgage¡ as follows:
“State of Illinois, )
County of LaSalle, ¡j
“I, A. T. Bartels, Clerk of the Probate Court in and for the County and State aforesaid, do hereby certify that Alva B. Goodrich, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged before me that he signed, sealed and delivered the foregoing instrument as his free and voluntary act and deed for the uses and purposes therein set forth, including the release and waiver of the right of homestead.
“Given under my band and official seal this twenty-eighth day of September, A. D. 1886.
A. T. Bartels,
(Seal.) Clerk of the Probate Court”
that the statements in said certificate were and are false and untrue; that said Goodrich at that date was not personally known to Bartels to be the same person whose name is subscribed to said mortgage, and did not appear before said Bartels in person and acknowledge that he signed, sealed and delivered said instrument; that the name of said Goodrich upon said note and mortgage was a forgery; that at that date, a man named Alva B. Goodrich resided in said county and owned the land described in the mortgage; that Bavens for Goodrich applied to plaintiff, Munson, for a loan of $2500.00, and presented to her a correct abstract of title to said land ; that plaintiff furnished to Bavens for Goodrich $2500.00, and received from Bavens said note and mortgage, which were assigned to her; that plaintiff was not acquainted with Goodrich, or the person claiming to be Goodrich, and relied solely upon the certificate of said Bartels; that Alva B. Goodrich has filed his bill against Munson, Bavens and one Gatlin and obtained a decree, finding said note and mortgage .to be forgeries and null and void as to him, and canceling the same of record; that plaintiff has declared the note and mortgage due •for non-payment of interest according to its terms; that the person, so forging Goodrich’s name and believed to be one Henry Boyd, is pecuniarily irresponsible and beyond the jurisdiction of the court; that said Bartels did not well and faithfully do and perform all the duties of his office as such clerk as required by law and the conditions of the bond, and plaintiff has been injured by his neglect and misconduct, etc.
The second count contains substantially the same allegations as the first except that it avers, that a person represent-; ring himself to be Alva B. Goodrich applied to plaintiff for the-loan, and presented the abstract showing title in Goodrich,, ■and the note and mortgage purporting to be executed by him,, and to be acknowledged by Bartels and having the certificate; aforesaid attached thereto; that the statements in the eertifi-eate were false, and the name of Goodrich forged; that Bavens, ■as agent of the person claiming to be Goodrich, gave plaintiff the note and mortgage, and she paid over the $2500.00 relying upon said certificate, etc.
The third count is substantially the same as the second, and 'further avers'that the name of Goodrich appearing on said note and mortgage is and was a forgery, and the said certifi