Nothing is clearer at the common law than that a judgment in a several action against a partner, merges the debt; and that if the statute does not help this plaintiff, the law is against him. But the statute was intended for the case of a judgment on a joint action taken severally against one of the defendants, which is nevertheless a joint judgment. Joint and several obligors are indeed mentioned in it; but there is no room for its application where one of them has been sued severally: the other would be liable on what is his several bond without it. The mischief was, that defendants, in a joint action, not taken or served, were discharged by the judgment, though the plaintiff had done all he could to bring them,in ; and no more was intended to be remedied. In this case, the plaintiff chose to accept the several judgment of one of the partners; and the statute is applicable exclusively to cases, not only of joint contract, but also of joint action.
Judgment affirmed.