| Mich. | Jan 15, 1851
The note upon which this suit is brought, having been executed by the defendants in their partnership name, is a joint, and not a. joint and several contract. The plaintiffs therefore, in order to maintain the action, must show a valid and subsisting contract against both of the defendants. Is the note such a contract ? Certainly not, if the judgment rendered upon it in Ohio is valid. The validity of that judgment is not controverted; hence, while it remains unreversed and in full force, it is by every principle a legal merger of the note. (2 John. R., 210; 18 Ib., 477; 13 Mass. R., 148; 1 McLean, 450; 2 Ib., 168; 1
If the plaintiffs have lost their right of action in this canse on the note against Brown by reason of the rendition of the judgment in Ohio, it is clear that the original joint liability of the defendants is at an end; the note being no longer a valid subsisting contract against both. It is no matter whether the original joint liability of the defendants on the note has been extinguished by operation of law, or by the voluntary election of the plaintiffs in proceeding, under the provision of the statute of Ohio, to judgment against one of the defendants only: the legal ■ effect is the same. In either case, the defendants, or either of them, may lawfully avail themselves of such extinguishment in bar of a recovery in a suit subsequently brought against both on the same demand.
When the plaintiffs, elected under the provision of the statute of Ohio, to proceed to judgment on the note, against Brown alone, they voluntarily and legally released their security on the note, as against Clark; hence, the judgment is a merger of the plaintiffs entire claim. Such must necessarily be the legal effect of their proceedings in that Court, under the statute of that State. The judgment in that Court is not a nullity, nor can it be judicially so regarded. It woidd indeed, be most extraordinary if the plaintiff's, after having recovered a judgment on the note, in one Court of competent jurisdiction, could at will repudiate it; and treat it as a nullity, for the purpose of prosecuting the same demand to judgment, a second time.
The plaintiffs cannot in this cause enter a nol pros., as to defendant Brown, and proceed to judgment against defendant Clark. , They have no several demand against Clark on the original note, if it had not been merged in the judgment.
Certified accordingly.