6 Me. 220 | Me. | 1829
delivered the opinion of the Court.
The note declared on is in form a joint one, and the case flmL that it was never signed by Libby, or by his authority ; and therefore the action is not maintainable on the first count; and the only question is whether it is on either of the general counts upon the original cause of action. — The note being negotiable, is said to have merged all implied promises, and that therefore the remedy of the plaintiffs exists only against Reed upon the note, on which lie may sustain a several action against him. There is no doubt as to the principle relied on by the defendants, where the parties to the implied and the express promise are the same. Nor is there any doubt that when a creditor of two persons, knowingly and intentionally takes the security of one of them only, which security is valid in law, the other original debtor is considered as discharged. But in the present case there is no pretence for supposing that the plaintiffs ever intended to extinguish the liability of Libby. The very form of the signature of the note proves the contrary. ’Libby never could be sued on the original account, excepi by the present plaintiffs s and in such an action.
