delivered the opinion of the court as follows, mz.'.
T he plaintiff sold certain goods’to Robert B, James- *262 son, 9 merchant of Alexandria, and took his >0016 for the amount, which he. put in suit, and prosecuted to a judgment. Afterwards, supposing the other defendant Mandeville to be a secret partner, he instituted a-suit against Mandevillе. and Jamesson. The declaration contains .three counts. The. first is on the note, and charges it to have been made by the defendants under the name, firm and style of Robert B. Jamesson. . The 2d and 3d counts are for goods,'wares and merchandise sold and delivered to the defendants, trading under the firm of Robert B. Jamesson.
The defendant Mandeville pleads two pleas in bar. The-first goes to. the whole declaration, and'the second applies only to the first count.
The first commences,with a protestation that the goods, See. in the declaration mentioned were not sold to the defendants jointly, and. then pleads in bar the promissory note which is averred to have been givеn and received for, and in discharge o'f, an account for sundry goods, wares and merchandise, sold and delivered to the said Jamesson, and that the goods in the declaration mentioned are the same which were sold and' cíe» ’ livered-tó the said Jamesson, and for which-the said ■ note was given. The plea also avers, that a suit was . .instituted аnd judgment obtained on the note, and concludes in bar.
The second plea pleads the judgment -in bar of the action.'
To the first plea the plaintiff demurs specially, and assigns for cause-of demurrer,
1. That the defendant does not iráverse the assumpsit laid in .the declaration.
2. That he does not expressly confess or deny that the goods, &c. were sold avid delivered to the defend--, ants, trading under,the firm of R. B. Jamesson, pr that the note was given by the said firm.
*263 3. Because an unsatisfied judgment agаinst James-son is no bar to an action against Mandeville.
4. It is not averred that the judgment has be'en satisfied.
5. The defendant does not deny or admit that he assumed to pay for the goods, &c., in the declaration ihentioned.
6. Because, the plea'is no answer to the declaration, or any count thereof, and is informal.
The defendant joins in demurrer.
To the second plea the plaintiff also demurs specially, and assigns, for cause of demurrer, the same, in, substance, which had been assigned to the- first plea, and the defendant joins in the demurrer to this plea likewise.
The other defendant, Jamesson, has put in no plea, nor are there any proceedings against him subsequent . to the declaration.
Although the first plea is not expressly limited to the 2d and 3d counts, yet it would, seem, from its' terms, to be intended to apply to the'm. alone. It sets up a bar to an action on an assumpsit for goods, wares,, and merchandise sold and delivered, and no such .assumpsit is laid ih the first count.
If,-however, it be considеred a? pleaded to the first count, it is clearly ill on demurrer. For it does not deny or avoid the joint assumpsit laid in that' couht.
It remains to inquire whether-this plea contains'» sufficient bar to the 2d and 3d .cоunts.
The plea, is, that the note was given and received for, and in discharge.of, an account or bill for goods, wares and merchandise sold and delivered by the plaintiff to Robert B. Jamesson, which áre the same goods, &c, that are mentioned in the -plaintiffs declaration.
*264 Thát a notе, without a special contract, would apt, °f itself, discharge the- original cause of aption, is not denied. But it is insisted that if, by express agreement, the note is received as payfnént, it satisfies the original contract, and the party receiving it must 'take his remedy on it.
This principle appears to be well settled. The note ■of one of thе parties or of a third person may, by agreement, be received in payment. The doctrine of nudum pactum does no.t apply to such a case; for a man may, if such be bis will, disсharge his debtor without any consideration. But,- if it did apply, there may be inducements to Cake a note from one partner liquidating and evidencing a claim on a firm which might be a sufficient consideration for discharging the firm. Since, then, the plaintiff has not taken issue on the averment that the. note was given and received in discharge of the,acсount; but has demurred, to the plea, that fact is admitted; and, being admitted, it bars the action for the goods.'
The special causes of demurrer which are assigned do not, in аny manner, affect the case. Whether the promise was made by Mandeville,- or not, ceases, to be material, if a note has been received in discharge оf that promise, and the payment of the note need not be averred, since its non-payment cannot revive the extinguished assumpsit.
fbe next subject of consideration is the second plea, which applies simply to the first count.
That count is on a note charged to have bisen made by Mandeville and Jamesson, trading under the firm of Robert B. Jamesson. This, not being denied, must be taken as true.
The plea is, that a judgment was rendered on this note against Robert B. Jamesson..
*265 Were it admitted that this judgment bars'an action against Robеrt B. Jamesson, the inquiry still remains, if Mandevillp was originally bound; if a suit could be originally maintained against him; is the note, as to him, also - merged in tne judgment?
. Had the action, in which judgment was obtainеd against Jamesson, been brought against the firm, the-whole note would most probably have merged in that judgment. But that action was not brought against the firm. It was brought against Robert' Brown Jamesson singly, and whatever other objections- may be made to any subsequent proceedings on the same note, it cannot be correctly said that it is -carried into judgment, аs respects Mandeville. If it were, the judgment ought in some manner to bind him, which, most certainly it does not. The doctrine of merger (even admitting that a judgment against one of several joint obligors would terminate the whole obligation, so that a distinct action could not afterwards be maintained against the others,, which is not admitted) can 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 first suit was on a sole contract.
Irt point of real justice there can be no reason why( an unsatisfied judgment against Jamesson should bar a claim upon Mandeville ; and it- appears to the court" thаt this claim is not barred by any technical rule of law, since the proceedings in the first action were instituted upon the assumpsit of Jamesson individually.
It is not necessary to decide whethei ...;s action -could have been maintained against Mandeville singly with an averment that the note was made by Mandeville and Jamesson. The declaration being against both partners, that quеstion does not arise. The ' declaration is clearly good in itself, and the plaintiff may recover under it, unless he be barred by a sufficient plea.
Admitting, for the present, that a previous judg- . *266 ment against Jámesson would bе a sufficient- bar, as to him, had Jamesson and 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. J hey have severed ; and as the whole note is not merged in a judgment obtained against Jamessоn, on his individual assumpsit, the court is not of opinion that Mandeville has so pleaded this matter as to bar the action.
In this plea it was necessary to negative the avеrment of the declaration, that the note was made by Mandeville as well as-Jamesson, or to show that the judgment was satisfied. The. defendant .has not done so. He has only stаted affirmatively new matter in bar of the action, which new matter, as stated, does not furnish a sufficient bar. It is not certain that this plea would have been good on a genеral demuribut on a special demurrer it is clearly ill.
The judgment, therefore', is to be reversed, and, ap no other plea is pleaded,'judgment must be rendered, on the first count, in favour 'of the plaintiff.
The judgment of the court was as follows 2 This cause came on to be heard on the transcript of the record; and was argued by counsel; on consideration whereof the court is of opinion, that there is error in the judgment of the circuit court in overruling the demurrer to the first plea, so far as the same is pleaded- in bar of the first count in the declaration, and-that there is" error in overruling the demurrer to the second plea; wherefore it is considered by this court, that the judgment of the circuit court be reverséd and annulled, and that the cause be remanded to the circuit court, with directions to sustain the demuifer,. to the-first plea so far as the same is рleaded- in bar of the first count, in the plaintiff’s declaration, and also to sustain the demurrer to. the second plea, and to render *267 judgment in favour of the plaintiff on nis said first сount, and to award a writ of inquiry of damages. *
Notes
After the opinion was given, C. liet moved for a direction to the court below to allow a plea óf non assumpsit. The court said they had never given directions respecting amendments, hut had left that question to' the court below. This court cannot now undertake to say whether the court below would be justified in granting leave to amend.,