Tatlor, J.
This case was tried and submitted to the jury upon the theory, first, that a discharge in bankruptcy of one of two co-debtors or joint debtors did not necessarily release the other joint debtor from the obligation to pay the joint debt; second, that in this case the discharge of Trainer, the defendant, released him from the obligation of his contract with the plaintiff to pay and satisfy the debts of the firm of Trainer & Hill; third, that a promise to pay or settle the debts of such firm, made by Trainer to Hill after he had been declared a bankrupt, or after his discharge, notwithstanding such discharge in bankruptcy, was a valid and binding contract, and, if clearly proved, left Trainer in the same condition as to his contract with Hill, his partner, to settle and pay such debts, as before his discharge.
These propositions were not seriously contested by either party, and the authorities cited by the learned counsel for the appellant, and many others which might be cited, would seem to establish the judicial soundness of such propositions. With these propositions established as the law of the case, it is insisted on the part of the learned counsel for the appellant, that the court erred in his instructions to the jury on submitting the case. It is insisted that the court erred in qualifying the instructions asked by the plaintiff, above quoted, by submitting to the jury the question whether the defendant had in fact settled these partnership debts, so that the same were fully discharged both as to the plaintiff and defendant; and by submitting as a question of fact for the jury, whether defendant did settle these debts, in his instructions numbered 9,10, and 11. After a careful examination of. the evidence of the defendant [544]*544himself, we think there is no' evidence upon this question of settlement of these partnership debts by the defendant, which could have been properly submitted to the jury. The evidence of the defendant as to the settlement of these claims all relates to the settlement of them which was made by the bankruptcy proceedings, and not to any settlement outside of such proceedings. ,
The only evidence bearing upon this question is that of the defendant himself, which is above quoted in the statement of the case. By an examination of this evidence it is clear that the settlement he speaks of was the settlement by and through the bankruptcy proceedings. He says, speaking of the proceedings in bankruptcy, “ that Puller & Co. had signed off with the rest of the creditors, and he had settled with Puller &Co.” Again he says: “I never at any time said these notes of Puller & Co. had been paid’ in full by me;” and, again: “ I am not certain as to the exact amount for which Fuller & Co. settled in the bankruptcy proceedings, but the papers will show. I think it was fifty cents on the dollar; whatever the amount was, I informed plaintiff of it in my last conversation.” These statements very clearly show that there was no pretense on the part of the defendant that he had settled and discharged the debt of Puller & Co. as against the plaintiff, unless the effect of the proceedings in bankruptcy was such as would discharge their debt both as to himself and the plaintiff.
It was admitted that the discharge introduced in evidence on the part of the defendant was not of itself evidence of the discharge of the plaintiff from all liability to pay the balance due on the notes of Fuller & Co. against the firm of Trainer & Co.; and the only other evidence in the case, which had any bearing upon the nature of the proceedings in bankruptcy, was the evidence of the defendant that Puller & Co. had signed his petition for a discharge; that they had signed off with the other creditors, and that he had settled with his credit[545]*545ors, in the bankruptcy proceedings, at fifty cents on the dollar. This evidence, it appears, was received without objection; and if it can be construed so as to raise a presumption that the defendant had obtained his discharge in bankruptcy by a compromise with his creditors under the bankrupt law, by paying fifty cents on the dollar, and that in making such compromise Fuller & Co. had voted in favor thereof, then it becomes a question of law for the court, and not of fact for the jury, whether such compromise in bankruptcy was a full settlement and discharge of Fuller & Co.’s debts as against Hill. If that evidence is not effectual to raise the presumption above mentioned, then it can have no effect to enlarge the legal effect of the discharge itself.
Admitting, as the most favorable construction which can be given to the testimony, of the defendant in'his favor, that it shows that he compromised with his creditors, under the bankrupt act, at fifty cents on the dollar, and that Fuller & Co. voted for such compromise and fully assented thereto, still such settlement and discharge in bankruptcy would not discharge Hill from his obligation to,.pay the balance due on the claim of Fuller & Co.; and the learned circuit judge should have so instructed the jury. The English courts have held, under the law concerning compositions in bankruptcy in England (which law is almost literally a copy of our bankrupt act on the same subject), that the surety or co-debtor is not discharged by the creditor owning the joint or secured debt voting for a composition under the statute.
In Ex parte Jacobs, 44 L. J., B., 34, Justice James, in delivering the opinion, says: “We entirely agree with the decision of the court of common pleas, and in the reasons they have given for it. We think that a discharge of a debtor under a liquidation or a composition is really a discharge in bankruptcy by operation of law. When a creditor voluntarily agrees to a compositiorn by deed or agreement with the acceptor, it is bv his act alone that the acceptor is discharged [546]*546and the position of the drawer altered. When, however, a debtor summons his creditors under the 125th and 126th sections of the bankruptcy act, the proper majority of creditors have power to assent to the terms by whiclr-the debtor is to be discharged, whether the creditor who is the holder of the bill chooses to attend or not, or whether he chooses to vote or not. The consequence of holding that the owner of a bill could not< vote at a meeting of the acceptor’s creditors without discharging the drawer, would bo that in many cases a great number, and in some cases a majority, of the creditors could not vote at the meeting. On the other hand, if resolutions for liquidation by arrangement or for composition were to contain a reservation of remedies by the creditors against any other person than the debtor, the consequence would be that the debtor would not, either by arrangement or composition, be completely discharged from any of his debts, in respect of which the creditor had a remedy against any other person, which would, we think, be contrary to the intention of the act.”
In the case of Megrath v. Gray, 43 L. J. (N. S.) in Com. Pleas, 63, the question whether a discharge of one of two partners, by a composition in bankruptcy, discharged his co-partner, was decided in the negative, after a very full discussion of the case, and a very elaborate opinion of the court by C. J.
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Tatlor, J.
This case was tried and submitted to the jury upon the theory, first, that a discharge in bankruptcy of one of two co-debtors or joint debtors did not necessarily release the other joint debtor from the obligation to pay the joint debt; second, that in this case the discharge of Trainer, the defendant, released him from the obligation of his contract with the plaintiff to pay and satisfy the debts of the firm of Trainer & Hill; third, that a promise to pay or settle the debts of such firm, made by Trainer to Hill after he had been declared a bankrupt, or after his discharge, notwithstanding such discharge in bankruptcy, was a valid and binding contract, and, if clearly proved, left Trainer in the same condition as to his contract with Hill, his partner, to settle and pay such debts, as before his discharge.
These propositions were not seriously contested by either party, and the authorities cited by the learned counsel for the appellant, and many others which might be cited, would seem to establish the judicial soundness of such propositions. With these propositions established as the law of the case, it is insisted on the part of the learned counsel for the appellant, that the court erred in his instructions to the jury on submitting the case. It is insisted that the court erred in qualifying the instructions asked by the plaintiff, above quoted, by submitting to the jury the question whether the defendant had in fact settled these partnership debts, so that the same were fully discharged both as to the plaintiff and defendant; and by submitting as a question of fact for the jury, whether defendant did settle these debts, in his instructions numbered 9,10, and 11. After a careful examination of. the evidence of the defendant [544]*544himself, we think there is no' evidence upon this question of settlement of these partnership debts by the defendant, which could have been properly submitted to the jury. The evidence of the defendant as to the settlement of these claims all relates to the settlement of them which was made by the bankruptcy proceedings, and not to any settlement outside of such proceedings. ,
The only evidence bearing upon this question is that of the defendant himself, which is above quoted in the statement of the case. By an examination of this evidence it is clear that the settlement he speaks of was the settlement by and through the bankruptcy proceedings. He says, speaking of the proceedings in bankruptcy, “ that Puller & Co. had signed off with the rest of the creditors, and he had settled with Puller &Co.” Again he says: “I never at any time said these notes of Puller & Co. had been paid’ in full by me;” and, again: “ I am not certain as to the exact amount for which Fuller & Co. settled in the bankruptcy proceedings, but the papers will show. I think it was fifty cents on the dollar; whatever the amount was, I informed plaintiff of it in my last conversation.” These statements very clearly show that there was no pretense on the part of the defendant that he had settled and discharged the debt of Puller & Co. as against the plaintiff, unless the effect of the proceedings in bankruptcy was such as would discharge their debt both as to himself and the plaintiff.
It was admitted that the discharge introduced in evidence on the part of the defendant was not of itself evidence of the discharge of the plaintiff from all liability to pay the balance due on the notes of Fuller & Co. against the firm of Trainer & Co.; and the only other evidence in the case, which had any bearing upon the nature of the proceedings in bankruptcy, was the evidence of the defendant that Puller & Co. had signed his petition for a discharge; that they had signed off with the other creditors, and that he had settled with his credit[545]*545ors, in the bankruptcy proceedings, at fifty cents on the dollar. This evidence, it appears, was received without objection; and if it can be construed so as to raise a presumption that the defendant had obtained his discharge in bankruptcy by a compromise with his creditors under the bankrupt law, by paying fifty cents on the dollar, and that in making such compromise Fuller & Co. had voted in favor thereof, then it becomes a question of law for the court, and not of fact for the jury, whether such compromise in bankruptcy was a full settlement and discharge of Fuller & Co.’s debts as against Hill. If that evidence is not effectual to raise the presumption above mentioned, then it can have no effect to enlarge the legal effect of the discharge itself.
Admitting, as the most favorable construction which can be given to the testimony, of the defendant in'his favor, that it shows that he compromised with his creditors, under the bankrupt act, at fifty cents on the dollar, and that Fuller & Co. voted for such compromise and fully assented thereto, still such settlement and discharge in bankruptcy would not discharge Hill from his obligation to,.pay the balance due on the claim of Fuller & Co.; and the learned circuit judge should have so instructed the jury. The English courts have held, under the law concerning compositions in bankruptcy in England (which law is almost literally a copy of our bankrupt act on the same subject), that the surety or co-debtor is not discharged by the creditor owning the joint or secured debt voting for a composition under the statute.
In Ex parte Jacobs, 44 L. J., B., 34, Justice James, in delivering the opinion, says: “We entirely agree with the decision of the court of common pleas, and in the reasons they have given for it. We think that a discharge of a debtor under a liquidation or a composition is really a discharge in bankruptcy by operation of law. When a creditor voluntarily agrees to a compositiorn by deed or agreement with the acceptor, it is bv his act alone that the acceptor is discharged [546]*546and the position of the drawer altered. When, however, a debtor summons his creditors under the 125th and 126th sections of the bankruptcy act, the proper majority of creditors have power to assent to the terms by whiclr-the debtor is to be discharged, whether the creditor who is the holder of the bill chooses to attend or not, or whether he chooses to vote or not. The consequence of holding that the owner of a bill could not< vote at a meeting of the acceptor’s creditors without discharging the drawer, would bo that in many cases a great number, and in some cases a majority, of the creditors could not vote at the meeting. On the other hand, if resolutions for liquidation by arrangement or for composition were to contain a reservation of remedies by the creditors against any other person than the debtor, the consequence would be that the debtor would not, either by arrangement or composition, be completely discharged from any of his debts, in respect of which the creditor had a remedy against any other person, which would, we think, be contrary to the intention of the act.”
In the case of Megrath v. Gray, 43 L. J. (N. S.) in Com. Pleas, 63, the question whether a discharge of one of two partners, by a composition in bankruptcy, discharged his co-partner, was decided in the negative, after a very full discussion of the case, and a very elaborate opinion of the court by C. J. Coleridge, who finally concludes his opinion as follows: “ Consequently, an order of discharge in all these cases releases only the debtor in whose favor it is given, and leaves his solvent co-debtor liable to be sued separately by a joint creditor who has been a party to the release of the insolvent debtor.” The same conclusion was arrived at by the supreme court of New York in the case of Mason & Hamlin Organ Co. v. Bancroft, 4 Cent. L. J., 295; 1 Abbott’s New Cases, 415. The argument in these cases is, that the discharge had in bankruptcy, through a compromise, has the same and no greater effect as to sureties and joint contractors than the discharge granted in such proceedings without compromise. [547]*547The compromise proceedings are held to be a substitute for the ordinary proceeding in bankruptcy for the accomplishment of the same object; and in construing the whole statute together, it must be held tliat congress did not intend to give any greater or other effect to the discharge obtained through the compromise proceedings, than is given to the discharge given in the ordinary way; and as the statute provides that the ordinary discharge shall not affect the creditor’s right to proceed against the sureties or joint contractors for the recovery of his debt, the discharge obtained through the compromise does not impair that right. Knapp v. Anderson, 15 Nat’l Bank’tcy Reg., 316; Hall v. Fowler, 6 Hill, 630; Holyoke v. Adams, 10 Nat’l Bank’tcy Reg., 270; Towle v. Robinson, 15 N. H., 408; In re Perry, 1 Nat’l Bank’tcy Reg., 220; Payne v. Able, 4 id., 220; In re Stevens, 5 id., 112; Dorn v. O’Neale, 6 Nev., 155; Winslow v. Parkurst, 1 Root, 268; Blumenstiel’s Law and Practice in Bankruptcy, 544-5.
Giving the defendant the benefit of the most liberal construction of his own evidence as to- his alleged settlement of the debt of Puller & Co., in and by the bankruptcy proceedings, it is evident that there was no such, settlement of the same as discharged the plaintiff, Hill, from his obligation to pay any balance which remained unpaid upon these notes against the firm of Trainer & Hill after the application of all the moneys paid thereon by the said Trainer. As the proofs stood on the trial, the court should have charged the jury that the evidence failed to show that the claim of Puller & Co. had been settled by Trainer so as to discharge Kill from all liability to pay the same, and that his payment of the balance due on said notes, or any part thereof, to the said Fuller & Co., was not a mere voluntary payment on his part, which Trainer was in no way bound to make good to him under his contract to pay the debts of the firm of Trainer & Hill.
It was held, and we think, properly, by the court, that Trainer's discharge released him from his obligation to pay those [548]*548debts, under bis contract with Hill. Mace v. Wells, 7 How. (U. S.), 272; Hardy v. Carter, 8 Humphrey, 153; Crafts v. Mott, 4 Coms., 603; Clarke v. Porter, 25 Pa. St., 141; Stedman v. Martinnant, 13 East, 427; Cowley v. Dunlop, 7 T. R., 565; Blumenstiel’s Law and Practice in Bankruptcy, 545. Upon the evidence'in the case, the only question of fact, therefore, for the jury was, whether the defendant had made any such promise to the plaintiff to pay this debt pending the proceedings in bankruptcy, or after his discharge, as would bind him to the payment thereof notwithstanding his discharge. Upon this question the learned circuit judge gave the proper instructions. The court, however, having submitted the question, as a question of fact for the jury to decide, whether the defendant had not settled the debt of Fuller & Co. in the bankruptcy proceedings, which, as we have said, was error, and having also properly submitted the other question as to the new promise to pay, and the verdict being general, we are unable to say that the jury found in favor of the defendant upon the question of the new promise. They may have found in favor of the defendant upon the ground that the debt was fully settled by the bankruptcy proceedings against the defendant, and that the payment made by Hill to Fuller & Co., after the defendant’s discharge, was a voluntary payment on his part, without any obligation in law to make the same, and that the defendant was not, therefore, bound to make him good for the amount of such payment.' The error is not curpd by the verdict, and the judgment must be reversed.
By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.'