McGowen v. Garrard
Supreme Court of Alabama
This was an action of debt brought in Lauderdale County Court, by J. McGowen as assignee, against W. W. Garrard and John Morgan, to recover on a sealed instrument made by them, and one J. Willis, in 1818, for the payment of $164 14, to G. Price, by said Price indorsed to one F. P. Pennington, and by Pennington to the plaintiff. The declaration was in the usual form. The defendant pleaded two pleas. The first was a general plea of fraud.
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This was an action of debt brought in Lauderdale County Court, by J. McGowen as assignee, against W. W. Garrard and John Morgan, to recover on a sealed instrument made by them, and one J. Willis, in 1818, for the payment of $164 14, to G. Price, by said Price indorsed to one F. P. Pennington, and by Pennington to the plaintiff. The declaration was in the usual form. The defendant pleaded two pleas. The first was a general plea of fraud. The second was a special plea, alleging that Price, the payee, Pennington, the first indorser, and Willis, the joint maker, who was not sued) combined and…
1Opinion of the Court
By JUDGE PERRY.
We are by the demurrer brought to the consideration of the sufficiency of the facts-of the second plea to bar the plaintiff of his recovery. The defendants, by executing with Willis the writing obligatory sued on, waived- all their right to question the illegality of the first transaction; for it was competent for them to recognise the contract made by Willis, and thereby make themselves liable with him, although they might not have been liable in the first instance. This they did do, by entering into the bond sued on. But the defendants endeavor to avoid their responsibility…
2Cited by3 opinions
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