Spencer, Ch. J.
delivered the opinion of the Court. The first position taken by the plaintiff’s counsel is, that where several persons are indebted as partners, they are jointly and severally indebted; and the case of Rice v. Shule, (Burr. Rep. 2611 ) has been cited in support of that doctrine. Lord Mansfield did say, in that case, that all contracts with partners were joint and several, and every partner was liable to pay the whole. The statement of that case is,' that on the trial, evidence was given that one Cole, who was not joined in the action as defendant, was a partner of Shule, and thereupon the plaintiff' was nonsuited. This nonsuit was set aside, on the ground, that the fact of there being [477] another partner ought to have been pleaded in abatement. This was a most salutary decision, and prevented much injustice' and costs, by requiring the party defendant to take his stand in limine, by pleading in abatement, and showing who the other partners were. But it would be straining Lord Mansfield's opinion, unreasonably, to say, that he meant- technically, that all contracts with partners were joint and several, for, then, the non-joinder of any of the partners never could be pleaded in abatement, which all the Court expressly decided. In equity, they are joint and several ; and so they were as regarded that suit; the defendant having neglected to avail himself of the objection in a legal manner. Surely, it cannot be said, that in a legal sense, where there are a plurality of debtors, that their contract is joint and several, when they have engaged jointly to pay the debt. Each debtor is bound for the whole, until the debt is paid; but as regards the remedy to coerce payment, there is a material and settled distinction. If they have undertaken severally to pay, separate suits may be brought against each ; but where their undertaking is joint, unless they waive the advantage, by not interposing a plea in abatement, they must be sued jointly, if in full life, and neither has been discharged by operation Of a bankrupt or insolvent law, or is not liable on the ground of infancy. We must, then, consider the promises in this case, as joint.
Two questions then arise: 1. Whether, by the plaintiff proceeding to judgment against two of the joint promisors, the debt is not merged in the judgment ? 2. Whether, having made the two partners against whom the judgment was recovered, parties to this suit, the suit can be sustained against the other defendants, in consequence of the - extinguishment of the simple contract debt, as to the two defendants, by the judgment against them ?
(1.) In 1 Chitty, 30., the law as to the effect of proceeding to judgment against one of several joint debtors, is thus laid down: “ There is, however, this objection in thecaseofajoint contract, to the non-joinder of one or more of the several pa? ties liable; that if judgment be obtained against one, in a separate action against him on such contract, the. plaintiff .cannot, afterwards, proceed against the parties omitted, and, [478] consequently, loses their security.’5 By reference to the cases cited by Chitty, it will be found, that they were actions in tort; and even in those actions which are, in their nature, joint and several, it has been held, that where the plaintiff proceeded to judgment against one, the others might plead this in bar. (Cro.Jac.73. Yelv. 67. Com. Dig. Action, K. 4. 6 Co. Rep. 75.) These cases came under review in this Court, in Livingston v. Bishop, (1 Johns. Rep. 291.) and it was decided, that a judgment alone would be no bar, without satisfaction. In Wilkes v. Jackson, (2Hen.& Munf. 358. 361.) it was decided, that a judgment for damages, in a separate action against one of several joint trespassers, is a bar to an action against the rest. There is, however, a wide difference between a judgment against one of several tort-feasors, and against one of several joint --.debtors. In the latter case, whatever extinguishes or merges the debt as to one, merges it as to all.
(2.) But the second point is clearly with the defendants ; that in actions ex contractu, against several, if a joint contract be not proved against all the defendants, (with the exception of infancy, and a discharge under a bankrupt or insolvent law, and of the death of one of the parties,) the plaintiff must be nonsuited on the .trial; and if it appear on the pleadings, that too many persons are made defendants, the defendants may demur, move in arrest of judgment, or sustain a writ of error, (1 Saund. 153. n. 1. 291.f. g. 2 Str. 820. 1 Bos. & Pul. 73. 6 Term Rep. 770.) In the case of Hartness and another v. Thompson and wife and Nelson, (5 Johns. Rep. 160.) the plaintiffs declared against the defendants on a joint and several promissory note. It appeared, on the trial, that Nelson was an infant, a verdict was taken for him, and against the other defendants. This was held to be correct, on the ground, that infancy was a personal privilege, to be taken advantage of only by the infant himself. This, however, was, in some measure, a departure from former decisions; and the con- . trary was determined in 3 Esp. N. P. 76. and 5 Esp. 47. We adopted the principle advanced by Mr. Justice Denis-ton, (1 Wils. 90.) that in cases where an action is brought against several persons on a joint contract, and one pleads some plea which goe.s to his personal discharge, and not to [479] the action of the writ, the plaintiff may enter a nolle prose-qui as to=him, and proceed against the others. But Mr. Justice Van Ness, in delivering the opinion of the Court, in Hartness v. Thompson and others, expressly says, “ the general principle, that the plaintiff must prove a joint contract when he brings a joint suit, is not intended to be shaken, by the rule which the Court have thought proper to apply to this case.” “ We mean,” (he says,) “ to confine its ope-; ration, exclusively, to the case of a defence insisted upon by one of several joint debtors, which is personal to him, and which does not go to the discharge of all.” If, then, in an action against several, upon a joint contract, the plaintiff must show a joint subsisting contract, we are led to the inquiry, whether the judgment against Soulden, and Peter Sken Smith, upon these identical notes, does not form a bar to a recovery in this suit against the four defendants. In Cheetham and others, Executors, v. Ward, (1 Bos. & Pul. 630.) the case was, lhat William Ward, and James Ward, gave a joint and several bond to Cheetham; the plea was, that Cheetham, the testator, by his last will, appointed William Ward one of his executors, who, with the other executors, duly proved the will, and took upon them the execution thereof. There was a demurrer to the plea, and joinder. The Court were unanimously of opinion for the defendant; and Eyre, Ch. J., put the decision on this acknowledged principle, that where a personal action is once suspended, by the voluntary act of the party entitled to it, it is forever gone and discharged. This, he said, was admitted to be the case, where there was but one obligor, but that the very point in issue had been decided in the year book, 21 Edw: IY. 81. b. He said, there was but one duty extending to both obligors, and it was, therefore, pointedly put, that a discharge of one, or a satisfaction made by one, is a discharge of both; and that, he said, put an end to the argument, for it was the effect of the suspension as to one, that released, discharged, and extinguished the action as to both. Heath, Justice, said, it was of no consequence whether the release be by operation of law, or by deed demonstrating the intent of the party. Roolce, Justice, said, the obligee has it not in his power to elect to discharge one obligor, [480] withoutdischargingtheother. (1 Bos. & Pull. 632. S.C.note a £Jac Abr. lit. Obligation, D- and the cases there cited.) The case of Drake v. Mitchell and others, (3 East, 251.) has been much relied on bj the plaintiff’s counsel as a strong authority in maintenance of this action. The case was, that one of three joint covenantors gave a bill of exchange for part of a debt secured by the covenant, on which bill a judgment was recovered. The plea stated, that for the payment and satisfaction thereof, {the lili. 2s 3d. residue,) the bill was given, and that judgment had been recovered thereon. It was decided, that the judgment was no bar to the action on the covenant against the three, it not being averred, that the bill was accepted as satisfaction, nor to have produced it, in fact. Lord Ellenborough said, he had always understood the principle .of transit in rent judicatam, related only to the particular cause of action in which the judgment is recovered, operating as a change of remedy, from its being of a higher nature than before. That a judgment recovered in any form of action, is still but a security for the original cause of action, until it be made productive in satisfaction to the party ; and, therefore, till then, it cannot operate to change any other collateral, concurrent remedy, which the party may have. Grose, Justice, considered the bill as a collateral security; and Le Blanc, Justice, put his opinion on that ground. Taking what fell from Lord Ellenborough, in reference to the subject matter, it has no bearing on this case, where the judgment was upon the joint security, or promise itself.
The 13th and 14th sections of the statute for the amendment of the law, &c. (1 N. R. L. 521.) have been referred to. The 13th section gives a remedy to a creditor against joint debtors, by authorizing process to be issued against them in the manner then in use, and in case any of them are returned taken, he or they so taken and brought into Court, shall answer to the plaintiff, and if judgment pass for the plaintiff, he shall have his judgment and execution against such of them as were brought into Court, and against the other joint debtors named in the process, in the same manner as if they had all been taken and brought into Court, by virtue of such process ; but execution shall not be executed against the body; or lands, or goods, the sole' [481] property of any person not brought into Court. The 14th section relates solely to bonds and recognizances, is which persons are bound jointly and severally, or severally only, and provides how they may be sued; and, as regards them, alters the provisions of the common law. The 13th section of the act was intended to obviate the difficulty and delay arising from the necessity of outlawing such of the defendants as it was necessary to make parties, and who could not be arrested on the process; for it was a settled principle of the common law, that if there were several defendants in a joint action, and one of them could not be arrested, the plaintiff must proceed to outlawry against him, before he could go on against the others. (1 TiddCs Pr. 125. and the notes.)(a) The provisions of the 13th section of the act referred to, show, conclusively, that this was the sense of the legislature, and to remedy this inconvenience, the statute was passed.
I think, then, that I am authorized in saying, that, in case of joint debtors, they must be jointly sued; that if a less number than the whole be sued, that is matter which can be pleaded in abatement only; that it is necessary to show a joint subsisting indebtedness in all the defendants ; and, in cases of assumpsit, it is necessary to show a subsisting liability on the part of all the defendants, as promisors, with the exceptions already mentioned ; and that where, as respects any of the defendants, the right of action is gone, or suspended, their joint liability being at an end, the other defendants may avail themselves of this suspension or discharge, whether it be produced by the act of the party, or by operation of law, at the instance, and by the act of the creditor» Consider the operation of the contrary principle, as regards this very case. The plaintiff has already a judgment upon these notes against two of the defendants, and may proceed to execution. In the present suit, the same defendants are made parties, and necessarily so, and in this suit, also, if the plaintiff can recover, there must be judgment against them; so that, with regard to two of the defendants, thére will be,"on the records of this Court, two distinc^ judgments for the same debt. In the [482] former, the separate property of both the defendants will be liable to be taken and sold on execution, and in the latter, the joint property of all the present defendants. This is. certainly an anomaly in the law, and is inconsistent with all my notions of a correct, and regular judicial proceeding:
The case of Sheehy v. Mandeville, (6 Crunch, 253.) has been cited and relied on, as entirely decisive of this case. I regard that case as entitled to high respect, from the elevated character of the Judges who compose that Court; but it is not authoritative or binding here. The decision is not one of those in which that Court has any paramount or controlling force over the State Courts. It is to be respected only as the opinion of learned and distinguished Judges; and, viewing it in that light, notwithstanding the homage I am disposed to pay to that Court, I cannot, consistently with my views of the law, yield to its authority or reasoning. The cause came up on error to the District Court, sitting at Alexandria. The action was assumpsit, brought by Sheehy against Mandeville 8? Jamesson, upon a promissory note purporting to be given by Jamesson only. The allegation was, that Mandeville was a secret partner, and that the note had been given by the defendant, under the style, name, and firm of Robert B. Jamesson. The only plea necessary to be noticed, is the one in which the-defendant, Mandeville, who was alone taken, and who alone pleaded, set up, that the plaintiff had before sued Jamesson on the same note, in the Circuit Court of the district of Co- ' lumbia, and that such proceedings were had in that suit, that judgment was rendered thereon in favour of Sheehy against Jamesson, for the debt, and damages, and costs, with aver-ments that the judgment was unreversed, and that the note then sued upon, was the same as in the former suit. There was a demurrer and joinder. In the Circuit Court, judgment had been given for the defendant. The opinion delivered by Ch. 3. Marshall, on this point, is, that as the first suit was brought only against Jamesson, it could not be correctly said, that the contract is carried into judgment, as respects Mandeville', that the doctrine*bf merger could be applied only to a case in which the original declaration was on a joint covenant, not to a case in which the declaration in the [483] first suit was on a sole contract, (even admitting that a judgment against one of several joint obligors, would terminate the whole obligation, so that a distinct action could not af-terwards be maintained against the others, which he did not admit.) He observed, also, “ that admitting that a previous judgment against Jamesson, would be a sufficient bar as to him, had Jamesson & Mandeville joined in the same plea, it would have presented an inquiry of some intricacy, how far the benefit of that bar could be extended to Mandeville; but they have not joined in the same plea. They have severed; and as the whole note is not merged in a judgment obtained against Jamesson, on his individual assumpsit, the Court is not of opinion, that Mandeville has so pleaded this matter as to bar the action.” This is the substance of the opinion, and although it comes recommended to us by the abstract justice of the principles advanced, I certainly have not been so fortunate in my researches, as to find the adjudged cases in support of it. It is, undoubtedly, true, that á suit and judgment against Jamesson, was not a judgment against Mandeville; but that the doctrine of merger, or ex-tinguishment, would be applicable only to a case in which the declaration was on a joint covenant, and not to a case in which the declaration in the first suit was on a sole contract, I must beg leave to deny, not in the terms in which the proposition is stated, but upon the facts of that case, and of the one now under consideration. In both cases, the declaration was upon a joint promise ; and in the one case, a judgment had been rendered against one of the two defendants, on the same joint contract, and in the other, against two of them on the same promises. Now, if the general issue had been pleaded, and under that evidence could have been given of the recovery of the judgments against some of the defendants, I beg to know, whether, as regarded such defendants, the promises were not merged in the judgments. It seems to me, that this is an undeniable proposition, else, there may be several judgments against the same person for one and the same debt or duty. If, then, as respects the defendants, against whom the judgment had been recovered, the simple contract was merged in the judgment, and they had ceased to be answerable upon the simple contract, the [484] plaintiff must fail, because, he has not maintained his declaration in showing a subsisting indebtedness in all the defendants, in the manner alleged in his declaration ; but, on the contrary, it would appear, that the plaintiff, by his own act, through the instrumentality of the law, has suspended his remedy against some of the defendants, by changing their indebtedness from that of a simple contract to a debt of record. Nor do I perceive how the Court could disengage themselves from the intricacy of the inquiry, which it was admitted would have arisen, had Jamesson & Mandeville joined in the plea, (which, in that case, it seems to be admitted, would have been a bar in favour of Jamesson,) because Mandeville alone pleaded. If a judgment rendered against one of several joint promisors, extinguished, merged, or suspended the plaintiff’s right on that contract against one, and, as a consequence, against the other, then, certainly, either of them could plead that matter; and how the legal state of the question could be varied, by the same matter being pleaded jointly or severally, I am at a loss to discover. Upon the whole, 1 am not satisfied by the train of reasoning adopted in the case of Sheehy v. Mandeville. My conclusion is, that the judgment against two of the defendants, is a bar to a suit brought on the same cause of action against those two, and Peter Smith and Van Santvoord, as longas that judgment remains in full force. Whether the Court would not allow the plaintiff to move to vacate the judgment, is a different question ?
Judgment for the defendant.