McGowen v. Garrard , 2 Stew. 479 ( 1830 )

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 by alleging that they were threatened to be harrassed, and that Pennington advised them that they would have the notes first executed by Willis to pay, and that to avoid being harrassed, they substituted the note in question. They shew no want of knowledge as to the facts on their part, and having execu ted the note with a full knowledge of all the facts, they are bound by it. The plea does not shew a state of- fact sufficient to warrant the conclusion that a fraud has beenpractisecl upon the defendants; consequently it is no bar to the aetion. We are therefore of opinion that the judgment of the Court below must be reversed, and judgment rendered here for the plaintiff.