Myers v. Stephens

Decided January 7, 1869

Court of Appeals of Kentucky · decided 1869-01-07

<p>Bills and Notes — Illegal Consideration — New Obligation by Replevying.</p> <p>Although the illegality of an original consideration might constitute a bar to an action on a note, yet where judgment is permitted thereon, a new obligation is created by replevying it.</p>

Decided 1869-01-07

¶1Opinion of the Court by

Judge Hardin:

¶2If, as is insisted for the appellant, the illegality of the original transaction in which the note to Wyatt was given, might have constituted a bar to the action on the note, or even have been sufficient to prevent a recovery by one of the obligor’s for contribution, if he had paid the note, yet when the appellant and Stephens had permitted a judgment to be rendered on the note by Wyatt’s assignee and taken on themselves a new obligation by replevying the judgment, they were both legally bound to pay *76the debt and liable for .contribution as between themselves (Minus v. Johnson, etc., 1 Duvall, 171).

Hazlerigg & Winn, for appellant.Turner, for appellee.

¶3The instruction which the court gave the jury, being in conformity with this view, seems to us to have presented the law of the case.

¶4Wherefore the judgment is affirmed.