
    Wilkins & al. vs. Reed & al.
    
      A. and B. being joint owners of a vessel, Jl. who was master, purchased supplies for her, giving therefor a negotiable note in his own name and that of P. jointly, but without authority from B. — In an action by the promisee against Jl. and B-brought upon this note, with the usual general counts for money and goods, and an insimul computassmt, it was held — that the note being void as to B. it was no extinguishment of the original implied promise of both the owners ; and that therefore the plaintiff might wellrecover against both, on the general counts.
    This was an action of assumpsit by the promisees against the makers of a promissory note; with the common money counts, a quantum valebant, and an insimul computassent.
    
    At the trial, before Weston J. it appeared that all the counts were for one and the same original cause of action ; — and that the defendants Reed and Libby were joint owners of a schooner, of which Reed was master, and for which the plaintiffs furnished the supplies mentioned in the writ, taking therefor a negotiable promissory note signed by Reed in his own name and that of Lobby, jointly. The defendant Lobby pleaded that-he never promised jointly with Reed; and contended that the note was void, as against him, for want of authority in Reed to bind him in that manner; and that he was not liable on ihe general counts, the implied contract on which they were founded having been merged in the note given by Reed, which was negotiable.
    But Weston J. before whom the cause was tried, instructed the jury that the note was accepted in payment of the account only on the faith that both of the defendants were holden thereon; — that if one of them disclaimed his liability, and was not bound, he was still holden on the original cause of action; that Libby neither was nor had been in danger of being twice charged that if not holden upon the note, he could not have been liable to a third person to whom it might have been negotiated; — and that therefore he remained answerable, with the other defendant, to,the plaintiffs, for the value of the supplies furnished. And they accordingly returned a verdict for the plaintiffs; which was taken subject to the opinion of the court upon the correctness of the instructions given them.
    
      Crosby, for the plaintiffs.
    
      Wilson, for the defendants.
   Mellen C. J.

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. the verdict and judgment in this action would be pleadable in bar. He cannot, - therefore, be endangered, as the note is void in respect to him. Perfect justice has been done by the verdict; and both defendants are safe. Our opinion is that the instructions of the judge were correct. Judgment on the verdict.  