
    George Shed versus Jonas Pierce, Jun. and Abner Pierce, Jun.
    In assumpsit by the promisee against A and B, the makers of a joint and several promissory note, A not appearing, B pleads in bar, that A being indebted to the plaintiff in a certain sum, and B being indebted to A in a sum not then liquidated, it was agreed between the plaintiff and A that the latter should assume to pay the plaintiff whatever should afterwards be found due from B to A, and that if B would sign the note declared on, he should be held to pay thereon only the sum which should be so ascertained to be due from him to A; that he signed the note accordingly, and had paid to the plaintiff the sum ascertained. Upon demurrer the plea was held bad.
    Assumpsit upon a joint and several promissory note, made by the defendants, for 398 dollars, 36 cents, payable to the plaintiff or his order on demand, dated the 25th of November, 1819.
    The defendant Jonas P. suffered a default; and the other defendant, Abner P., pleaded in bar of the action, that the said Jonas being indebted to the plaintiff in the sum of 390 dollars, on his sole and individual account, and that he, the said Abner, being indebted to the said Jonas in a certain sum not then ascertained, it was agreed by and between the plaintiff, and him, the said Abner, that the latter should assume and pay to the plaintiff whatever sum should be thereafterwards, upon a settlement of his accounts with said Jonas, found to be due to said Jonas from him, the said Abner; and that, in consideration that he, the said Abner, would sign a joint and several note of hand with the said Jonas for the sum so due and owing to the plaintiff from the said Jonas, he, the said Abner, should be holden and obliged to pay such sum of money as should be ascertained to be due and owing from him, the said 
      Abner, to the said Jonas, upon a settlement of their accounts, as aforesaid, to the plaintiff on account of said note, and no more 01 further sum ; that on the day of the date of the note declared on, he, the said Abner, relying upon the said agreement of the plaintiff, * made and signed the same note; and [ * 624 ] afterwards, on the 1st day of April, 1820, paid to the plaintiff the sum of 203 dollars on account of said note ; which was the whole sum found due from him to said Jonas, on a settlement of their accounts, as aforesaid ; whereby the said note of hand became paid and discharged, so far as he, the said Abner, was or is holden and obliged thereby; and this he is ready to verify; wherefore he prays judgment if the plaintiff his action aforesaid, against him, together with the said Jonas, ought to have or maintain, &c.
    The plaintiff demurs to this plea, and assigns the following causes of demurrer:—1. That it is a separate plea, in an action founded on contract against two persons contractors, of one of those contractors.—2. That it sets up, as a bar to an action against two persons, a collateral contract in favor of one of those persons.—3. That it avers the payment of a smaller sum of money, as a satisfaction of a debt of a larger sum then due.—4. That it does not aver that said smaller sum was accepted in satisfaction of said larger sum.—5. That the plea, not being a good bar to the action against one joint contractor, is not a good bar to the action against both joint contractors.—6. That the plea is double, argumentative, informal, and insufficient.
    The defendant joins in demurrer.
    
      Dunlap, for the plaintiff,
    in support of the first cause of demurrer, cited the case of Meagher vs. Batchelder & Al. 
      . In support of the second cause, he cited the case Ruggles vs. Patten 
      . To the third cause he cited the case of Cumber vs. Wane 
      . As to the fourth cause, he argued that common sense, as well as common principles of law, showed that such an averment was ne cessary in support of the plea. It could never be presumed that a creditor would accept a smaller sum, as full satisfaction for a greater.
    If this is a good plea for him who has pleaded it, it must also be good for the other defendant; yet this was * never the intention of the pleader.—The agreement [ * 625 ] pleaded in this case must be understood to have been by parole only, and not in writing. But such an agreement is no bar to the action, however it might furnish the defendant a cause of action against the plaintiff .
    
      
      A. Bliss, in support of the plea. This is not a severance in pleading, in the sense of the cases referred to. Abner P. is the sole defendant. Jonas P. has not appeared; and neither the defendant nor the Court has power to compel his appearance: unless a separate plea be allowed, the defendant is without remedy.
    No distinction is made, in the assignment, between pleas in discharge of the person, and pleas in discharge or bar of the action. But pleas of the former description are frequent  ; and if one of several defendants pleads a plea in discharge which is allowed, what are the other defendants to do ? They must necessarily have a separate plea; and where there is but one, he shall have a sole plea. Such a case is analogous to the present. Here is but one defendant on the record; and he has pleaded a sole plea in bar of the joint action. Such a plea is good .
    The pleas of husband and wife, who must always join, whether in tort or contract, form an exception, which proves the general rule .
    As to the second cause of demurrer; it is true the plea discloses a contract in favor of one only of the promisors. But whatever shows that the plaintiff ought not to have his action against one, is a good bar; because that shows he ought not to have his action against both. There cannot be several judgments in an action ex contractu 
      .
    As to the third and fourth causes of demurrer; if the plea was, as it seems to have been apprehended, a plea of accord and satis faction, these exceptions would be valid. But it is a plea of performance of payment secundum assumptionem 
      . An [ * 626 ] accord with satisfaction is always subsequent to the * contract, out of which the action grows. The agreement m this plea is contemporary with the promise. So an accord is a distinct contract formed upon a new consideration . Here the agreement is part of the note. It is, in truth, the actual consideration and moving inducement, on the part of the defendant, to make the promise. An averment of acceptance in satisfaction would be impertinent .
    Nor is the sum paid smaller than the sum assumed by the defendant. True, it is smaller than the amount of the note; but the note is only one side of the contract. The whole agreement of the parties is now upon the record ; and it is manifest that the defendant has faithfully performed all that he undertook to perform. To separate the note from the agreement, would be to make a contract for the parties, which they never intended.
    As to the fifth cause of demurrer;—the plaintiff has a remedy, to recover upon the several promise of Jonas. He can maintain an action upon that promise; although he cannot upon the joint promise, nor upon the several promise of Abner. This is the distinction in Lucy vs. Kynaston 
      , and in Dean vs. Newhall 
      , as recognized by the court in Harrison vs. Close 
      .
    To suffer the plaintiff to maintain this action, would be permitting him to violate his agreement, as plainly and directly, as if he had sued upon the several promise of the defendant; and the exact measure of damages, which the defendant might recover of the plaintiff, would be the amount of the judgment against him in this suit . In such case, the Court will not turn the defendant round; but will give to the agreement the effect of a release of the joint action. The same stipulation, in order to give effect to the intention of the parties, will, in one application, operate as a release, and in another, as a covenant or promise .
    * One promise may qualify or discharge another prom- [ * 627 ] ise, before breach ; in like manner as one deed may affect another deed .
    The promise in the present case, upon the face of the declaration, is absolute; and the tendency of the facts, disclosed in the plea, is to render it conditional or contingent. The plea does not contradict the note; it merely rebuts a legal presumption . It admits the promise as alleged; but avers that there were additional stipulations and provisions, which the plaintiff had omitted to state in his declaration. Hodges vs. Smith 
       and Huish vs. Phillips 
       are cases, in which the defendants were admitted to aver, against the legal operation of a bond and recognizance. So a deed absolute upon the face of it, may be shown to be a mortgage, or an escrow. So a promissory note, purporting to be for a valuable and full consideration, may be affected by evidence, so long as it remains between the original parties, proving it to be payable on a contingency . The promise laid in the declaration is without consideration, other than what is given to it in the plea; and for this cause, if for no other, the action cannot be maintained.
    
      
       6 Mass. Rep. 444.
    
    
      
       8 Mass. Rep. 480.
    
    
      
      
        ¡Strange, 426.
    
    
      
       4 Mass. Rep. 414, Dow vs. Tuttle.—Cowp. 47, Mease vs. Mease.—Cro. Eliz. 697 Hayford vs. Andrews.
      
    
    
      
      
        1 Wits. 89, Noke vs. Ingham.—Salk. 456.—Com. Dig. Pleader, E. 35.
    
    
      
       1 Sid. 76, Boulter vs. Ford.—Ibid. 378, Blake's ease.—8 Mass. Rep. 444
    
    
      
      
         Dig. Pleader, 2, A. 3.
    
    
      
       13 Mass. Rep. 150, Ward vs. Johnson.—2 Salk. 574.
    
    
      
      
        Com. Dig. Pleader, 2 G. 15.
    
    
      
       7 Wentw. Index.—3 Johns. Cases, 243.—2 D. ^ E. 24.—5 D. E. 141
    
    
      
       5 D. E. 517, Kearslake vs. Morgan.
      
    
    
      
       12 Mod. 549.
    
    
      
      
        8 D. E. 168
    
    
      
       2 Johns. Rep. 448
    
    
      
       14 Mass. Rep. 433, White vs. Dingley
      
    
    
      
       2 Johns. 449.
    
    
      
       12 Mod. 537, May vs. King.
      
    
    
      
       15 Mass. Rep. 90, Davenport vs. Mason.
      
    
    
      
      
        Cro. Eliz. 623.
    
    
      
      
        Ibid. 754.
    
    
      
       1 Mass. Rev. 297. Lewis vs. Gray.—6 Mass. Rep. 430, Barker vs. Prentiss.
      
    
   Parker, C. J.,

delivered the opinion of the Court.

This being a joint action against two persons, and one of them naving suffered a default, there can be no doubt that the other may plead alone, any thing, which may be proper to bar the action. In this case, the defendant Abner P. pleads a certain agreement, the purport and effect of which is, that upon payment of a less sum than was due, from the other defendant upon the note, which they had jointly and severally made to the plaintiff, he was to be discharged from any further claim or demand upon the note; and he avers payment of this smaller sum, in pursuance of the said agreement.

The agreement, thus offered by the plea to be proved, is in direct contradiction to the promise contained in the note; [ * 628 ] and whether in writing or merely verbal, we think * cannot be set up against the note in this action. It amounts, at most, to a promise not to sue ; and so may be likened to a covenant for the like purpose; the law respecting which is, that if the covenantee be a sole debtor, he may plead a general covenant not to sue, as a release in bar of any action ; but if he be one of two or more debtors, such covenant cannot be pleaded in bar; but if he should be sued, contrary to the terms of it, he must pursue his remedy by action upon the covenant .

There seems to be no distinction made between a joint and a joint and several contract, in either of the cases referred to; it being held that, wherever there is more than one debtor in the contract, a covenant not to sue one of them cannot be pleaded in discharge. ' f he were sued alone, perhaps the law would be different; he being then, by the choice of the creditor, to be considered in that action a sole debtor.

In the present case, the rejection of the plea seems to be necessary, conformably to the authorities; and indeed there seems to be nothing inequitable in this result; for it does not appear by the plea, that there has yet been any violation of the promise therein set forth. There is no promise by the plaintiff, that he will not sue the defendant; but that he shall not be held to pay more than should be found due from him to his co-defendant. We do not know that the plaintiff will call on the defendant for more. He will have a joint judgment and a joint execution ; and may cause the same to be satisfied from the effects of the other defendant altogether. If he should compel Abner P. to pay, contrary to any valid agreement existing between them, he will be answerable in an action.

Whether the agreement described in the plea was in writing or not does not appear; if not, certainly it ought not to avail against the written contract, which is in clear, unambiguous terms. But if in writing, as by the plea we may take it to be, it being inconsistent with the express terms of the contract, and relating to one only ol the * promisors in the note, it ought not [ * 629 ] to defeat the action against the other; as it will do, if it should be held a good bar.

In Dow vs. Tuttle, cited in the argument, the principle involved in these pleadings is directly settled; and we see no cause to shake the authority of that case.

Plea in bar adjudged bad 
      
       1 L. Raym. 688.—8 1. fy E. 168.—2 Johns. Í48
     