Coster v. Clarke , 3 Edw. Ch. 411 ( 1840 )

The Vice-Chancellor:

Manhattan Company must look to their remedy at law upon the note. They have no equity to come into this court for payment out of the joint property, as they had made no loan nor given any credit on account of it. The transaction as to them is the mere transaction of discount of a note ; Emly v. Lye, 15 East. 6 ; Bevan v. Lewis, 1 Sim. 376. It is not like the case of Van Reimsdyk v. Kane, 1 Gall. 630.

And with respect to the equity in the Butler estate to be relieved from payment of the note : the executors lost the opportunity of setting this up, having acquiesced in the master’s report and decree, by which Clarke had been permitted to assume this note as a debt which he would pay. It was for him to indemnify Butler ; and if he did not, the remedy of the executors should be had against him.

Petition dismissed; but each party to bear his and their own costs.