Musgrove v. McIlroy

28 Ky. 646, 5 J.J. Marsh. 646, 1831 Ky. LEXIS 95

• Court: Court of Appeals of Kentucky
• Decided: April 21, 1831
• Status: Published

Opinion

Chief Justice Robertson

delivered the opinion of the court

Mtisgrove sued Mcllroy on the following writing:

“-$“58 75. Due William Musgrove, fifty eight doblara and seventy five cents, for value received, this 29th December,. 1824.”

“For Martin. Hardin, HUGH McILROY.”

The circuit court supposing that Hardin, and not Mcllroy was the obligor, sustained a demurrer to the' declaration.

This court cannot concur with the circuit court. It is impossible to make- any -reasonable or essential discrimination between the effect of this obligation, - and of that in Offutt vs. Ayres, VII Monroe, 356. The acknowledgment is as certainly made by McIlroy for Hardin, as it-could have been, if it had been an express promise by Mcllroy for Hardin. We consider the case of Offutt vs. Ayres, as authoritative and conclusive. The judgment of the circuit court cannot be sustained’ consistently with that case. For the only reason or principle which can defend the doctrine which it recognizes, is clearly and unavoidably, and. equally applicable to, and decisive of this case. “Due William Musgrove,” by whom? By Hugh Mcllroy for Martin Hardin. Then if the opinion in Offutt vs. Ayres be law, the circuit court erred. We do not feet authorized to disregard the authority of that case.

■ Wherefore, the judgment is reversed, and the cause remanded, with instructions to overrule the demurrer.