
    DENNETT & al. ex’rs. v. CHICK & al.
    If'one of two joint promisors have neither domicil nor property in this State, a separate action may he maintained' here against the other.
    A judgment in another State against one of two joint promisors, without satisfaction, is nohar to an action in this State against the other, upon the original contract.
    
      Assumpsit on a joint promissorjr note, made by the defendants to the plaintiffs’ testatrix. The defendant Ham not being to be found in this State, and having no domicil here, no service was made on him. The defendant Chick appeared, and pleaded in bar a judgment of the Court of Common Pleas for Strafford county in the State of New-Hampshire, recovered by the testatrix against Ham, in an action on the same note, Chick having no domicil nor property in 7hat State; on which judgment a writ of execution had been issued, and returned without satisfaction. To this plea the plaintiff demurred.
    
      J. Holmes and Hayes in support of the demurrer.
    The justice of the case is obvious ; as well as the necessity of preventing co-debtors from avoiding their joint contracts by taking a residence in different States.
    If a foreign judgment be pleaded, it should be with satisfaction ; without which no collateral security, not even a judgment, is a bar. Chipman v. .Martin, 13 Johns. 240. 3 Caines, 4. 14 Johns. 444.
    
      Shepley, for the defendant.
    The law is the rule of decision; and the law is the justice of every case.
    The note was joint, and not several; and by the common law of England it is necessary to sue both, and pursue to outlawry.. And no statute or usage exists here to the contrary. The cases of Tappan v. Brum, 5 Mass. 193, and Call v. Hagger ($<■ al. 8 Mass. 420, go only to the manner of the remedy, but do not deprive the party of any defence he may have at common law. Had the suit here been against both promisors, it could not be maintained, because a judgment had been had against one. The parol contract is merged in a higher security; and the joint promise exists no longer. Ward v. Johnson al. 13 Mass. 148. 1 Chilly on plead. 29.
   Mellen C. J.

at the following May term in Cumberland, delivered the opinion of the Court as follows :

Chick and Ham having given a joint note to the testatrix, she commenced an action in New-Hampshire on the note; declaring against loth the promisors; but as Chick was not then an inhabitant of that State, the writ was served on Ham only, and judgment was rendered against him. — In the present action, the writ has been served on Chick only ; as Ham was not within the jurisdiction of the Court; and the question is whether the judgment in New-Hampshire rendered against Ham, and which is pleaded in this case by Chick in bar of the action, constitutes a legal defence.

If one of two joint promisors be sued, it is well known that, unless he plead the non-joinder of his co-promisor in abatement, he is liable to a several judgment in the action. — The judgment in New-Hampshire was rendered on default; and if that action had been sued in this State, and against Ham only, such a judgment would have been regular. — In those cases where the promisors in a joint note live in different states, no joint action can be maintained and pursued to judgment; and unless a suit can be sustained against one of the promisors alone, no remedy can be had by the promisee. — These inconveniences are considered in the case of Tappan v. Bruen, 5 Mass. 193, and seem to be the basis of that decision. It is there decided that in such a case according to immemorial usage an action may be maintained against the promisor who lives in the State, where no service could be made on the other, living without the State. — The same principle is recognized in a note to the case of Call v. Hagger & al. 8 Mass. 423. It is true that in Ward v. Johnson & al. 13 Mass. 148. the Court decided that, as the plaintiff had in a former action recovered a judgment against one of the defendants, such judgment disproved the joint promise on which the plaintiff relied, and formed 6. bar to the action; — In two respects, however, that action differs from this. — There, the- former judgment was recovered in Massachusetts against one of the promisors'; and the writ in the latter was served on both the promisors; and they both joined in pleading the several judgment-in bar. — In the case before us, the writ was served on Chick only, and he only appears and pleads the JVezo-Hampshire judgment. — Can he avail himself of & judgment recovered against another person, merely because he was a joint promisor.?- — It is a general rule that no person is bound by a judgment, or can avail himself of it, unless he be a party or privy to it. — In this case the plea does not contain any averment that the former judgment haé been satisfied.— The justice of the case is so clearly with the plaintiffs, that unless some unquestioned principle Sanctions the defence, we áre disposed to render judgment in their favour.

No case has been found precisely similar to the one before us. Shechy v. Mandeville, 8 Cranch, 253. has a strong resemblance to it.- — The facts ivere these. — In 1805 the plaintiff brought an action against Jameson and obtained judgment against him. — Sométime after, discovering that Mandeville was a secret partner of Jameson, the plaintiff commenced another action against Jameson and Mandeville'. — Jameson having been discharged under an act of Congress for the relief of insolvent debtors within the District of Columbia, no further proceedings were had against him. In the second action Mandeville pleaded the judgmént against Jameson in bar; and on demurrer, the Circuit Court held the pica good ; but, on error, the Supreme Court reversed the judgment. 1 In delivering the opinion of the* Court, the Chief Justice observed, “ that admitting for the “ present that a previous judgment against Jameson would be a sufficient bar, as to him ; had Jameson 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. They have severed; and as the note is not merged in a judg- “ ment’against Jameson on his individual assumpsit, the Court “ is not of opinion that Mandemlle has so pleaded this matter “ as to bar the action.” As Jameson had ceased to be a party to the suit, by his discharge, and the pleadings were by Mandemlle only; such discharge would seem to have the same effect and leave the cause in the same situation as though he had never been joined and declared against in the action; or rather, had never been served with legal process. — He was then placed in the same circumstances, with respect to Mandemlle, as Ham is in this action with respect to the defendant Chick. — ■ We do not perceive any technical rule of law by which the plea in this action can be considered a good bar; and for the reasons given we are of opinion that the plea in bar is insufficient.

Judgment for the plaintiff's.  