Savage v. Todd , 2 Sarat. Ch. Sent. 28 ( 1842 )

Bill to restrain the executors of J. Birdseye deceased, from prosecuting a suit at law against the complainant and the defendant Bacon, upon a joint note executed by both, and to have the note delivered up and cancelled, on the' 'ground of usury. An answer from the defendants on oath was waived, and the sole object of coming into this court for relief was to enable the complainant to .avail himself of the testimony of his co-defendant in the'suit at law, to establish the usury. The executors demurred to the bill, which demurrer was overruled by the vice chancellor; from which decision they appealed.

The chancellor held that as the note is joint there can be no defence, in equity or at law, which does not relate to both defendants equally. And if, as alleged, Bacon was the principal debtor he is bound to indemnify the complainant, and therefore cannot be examined as a witness in his favor. And that though the complainant might remove that objection by-releasing him, yet such release should have been alleged in the bill; or at least an intention to release him averred.— That it is a fatal objection to the' bill that no decree can be made in the case, founded upon Bacon’s testimony, which would not be a bar to the further continuance of the suit upon the note, against the complainant.

Order appealed from reversed, and demurrer allowed, and bill dismissed with costs but without prejudice, &e.