
    Edmund Farrington v. Gallaway and Myers, James Gallaway, Jr., and George Myers.
    In a joint suit on a note against several defendants, one of them can not set up as a defense at law that he was a surety and the principal gave time for payment. His remedy is in equity.
    This was an action of assumpsit, tried on the circuit in 1841, in the Supreme Court of the county of Fairfield.
    The suit was brought on the following note:
    “ $1,040. Six months after date, we or either of us promise to pay E. Farrington, or order, ten hundred and forty dollars, for value rec’d.”
    Signed by all the defendants.
    Plea, the general issue,
    
      On the trial the defendant, George Myers, offered to prove that he executed the note as security for the other defendants ; that the plaintiff at the time knew it; that when the note became due, the plaintiff, in consideration of the payment by the *principals in the note of a large sum for usurious interest, [544 agreed with them to give further time till the 14th of April then next, to pay the note. This evidence was rejected by the court, and a bill of exceptions taken.
    Application was made for the allowance of a writ of error, but a non allocatur was indorsed by the four judges, on the ground that as the suit was brought against the defendants jointly and the matter offered in evidence was not a good defense as to all the defendants, one of them could not take advantage of it to defeat the action at law, but his remedy was in equity..
    Ewing, for the plaintiff in error.
    H. H. Hunter, contra.
     