Morse v. Hovey
New York Court of Chancery
This case came before the chancellor upon a demurrer by the defendant Hovey to the complainant’s bill. The object of the bill was to obtain a decree for a perpetual injunction, restraining the defendant Hovey from proceeding at law against the complainant for the recovery of a promissory note signed by the latter as the surety of the defendant Thayer, which note was alleged to be usurious, and to have such note declared void.
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This case came before the chancellor upon a demurrer by the defendant Hovey to the complainant’s bill. The object of the bill was to obtain a decree for a perpetual injunction, restraining the defendant Hovey from proceeding at law against the complainant for the recovery of a promissory note signed by the latter as the surety of the defendant Thayer, which note was alleged to be usurious, and to have such note declared void. The defendant Hovey demurred to the bill, and alleged for causes of demurrer that Thayer, one of the makers of the note, was made a defendant instead of a complainant in…
1Opinion of the Court
The Chancellok.
The complainant, standing in the situation of a mere surety for Thayer, has a right to set up the defence of usury to the note, and to file a bill in this court if necessary to establish that defence ; although the principal debtor should refuse to join in such defence, or to become a party complainant in the bill. The surety has no right to file a bill in the name of the principal debt- or without his consent. And the only remedy in such a case is to make the party having a common interest with the complainant who wishes to file a bill for relief here, a party defendant;…
2Cases cited1 opinion
- Perrine v. StrikerNew York Court of Chancery · 1839
3Cited by12 opinions
- Ettlinger v. . National Surety Co.New York Court of Appeals · 1917
- Williams v. . FitzhughNew York Court of Appeals · 1868
- Smith v. McLainWest Virginia Supreme Court · 1877
- Parkman's Adm'r v. Aicardi & ToolSupreme Court of Alabama · 1859
- Minturn v. . Farmers' Loan and Trust Co.New York Court of Appeals · 1850
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