Morse v. Hovey

1 Sarat. Ch. Sent. 42, 1841 N.Y. LEXIS 402

Opinion

Decided in this case that a person standing in the situation of a mere surety for the principal debtor has a right to set up the defense of usury to a note given by them, and file a bill in this court, if necessary, to establish that defense, although the principal debtor should refuse to join in that defense or to become a party complainant in the bill; but that the surety has no right to file a hill in the name of the principal without his consent. That the proper course in such a case is for the -surety to make the principal debtor a party defendant to a bill filed by him for relief, alleging as an excuse for doing so that he would not consent to join as a complainant in the suit. Demurrer allowed and bill dismissed as to defendant Hovey, with costs.