
    * Benjamin Ruggles versus Joseph Patten.
    In an action against one of several joint promisers in a note of hand, it is no bar that one of the promisers other than the defendant has paid his share, and been discharged by the promisee.
    It is no bar to an action on a promissory note for the payment of money at a day and place certain, that the holder of the note was not present at the time and place fixed for payment.
    Assumpsit by the endorsee against the maker of a promissory note. — The declaration contained three counts.
    The first count alleged that the defendant, at Columbia, on the 8th of October, 1808, by his note of that date, in writing, by him subscribed, for value received, promised one Thomas Ruggles, to pay him, or his order, 1500 dollars at the Penobscot bank, kept at Bucks-town, in four months, with interest after that time; and the said Thomas, afterwards, on the 1st day of May, 1810, by his endorsement, &c., ordered the contents of said note, then due and unpaid, to be paid to the plaintiff, for value received of him ; of which the said Patten then and there had notice, whereby he became liable, and in consideration thereof promised the plaintiff to pay him the same accordingly.
    The second count was like the first; with an additional averment that the said Thomas Ruggles was ready, at the said Penobscot bank, on the day the note became due, to receive the said sum and interest, and then and there demanded the same.
    The third count was for 2000 dollars, money had and received by the defendant to the plaintiff’s use.
    The defendant pleaded, 1. The general issue to all the counts m the declaration, which was joined.
    
      2. In bar to the first and second counts, that the promises therein mentioned, if any such were made, were made by the defendant, jointly with Samuel Bucknam, Thomas Low, Ichabod Bucknam, William Bucknam, and Thomas Wood; and that on the 29th day of March, 1809, in consideration of 378 dollars received of the said Samuel Bucknam by the said Thomas Ruggles, then the payee and holder of said note, and before the transfer of the same to the plaintiff, the said Thomas Ruggles did exonerate, acquit, and discharge the said Samuel, and also the other promisers, from any further payment in consequence of the breach of the promises in the said first and second counts mentioned, * and from all further performance thereof; and this, &c., wherefore, &c.
    3. The third plea is also in bar to the first and second counts, and contains the same averments as the preceding one, except that it alleges the payment of 378 dollars by Samuel Bucknam to the payee, to have been made and received in full of said • Samuel’s quarter part, and that the payee did then and there exonerate, acquit, and discharge the said Samuel from any further payment of the same note; and concludes with a verification.
    4. In bar to the second count, protesting that the defendant, on the day said note in the second count mentioned became due, was ready and willing to pay to the said Thomas Ruggles the contents thereof at the Penobscot bank, kept in Buckstown, according to the tenor of the promises in the said second count mentioned, avers that the said Thomas Ruggles was not then ready or present at the said bank to receive payment thereof; and did not demand the same of the defendant, as the plaintiff in his second count has alleged ; and tenders an issue to the country.
    The plaintiff replies to the second plea, that the said Thomas Ruggles did not exonerate, acquit, and' discharge the said Samuel Bucknam and the other promisers from any further payment, &c., and tenders an issue to the country, which is joined by the defendant.
    To the third plea the plaintiff demurs generally, and the defend ant joins in demurrer.
    To the fourth plea the plaintiff also demurs, and assigns the following causes of demurrer, viz.: — 1. Because the matter alleged in the protestando is not alleged or suggested in the declaration. — 2. Because the plea concludes to the country, when it ought to conclude with a verification.—3. Because it traverses and offers to put in issue an immaterial fact. — 4. Because it is informal, untechnical, and defective. And the.defendant joins in demurrer.
    
      * The issues in fact having been found for the plaintiff, the action came on at this term to be argued on the demurrers.
    
      The Solicitor General,
    
    in support of the demurrer to the third plea, contended that the discharge of one of the joint promisers was no discharge of the others. It amounts to nothing more than engagement not to sue the particular promiser.  It is not a release, because not under seal. It cannot be pleaded as payment, because it is not in full of the promise; nor, for the same reason, is it good by way of accord and satisfaction.
    
      Fuller for the defendant.
    This appears from the record to be a joint promise; and a release to one is a release to all in debt, or covenant, as well as in trespass.  Modern authorities have relaxed the principle, that a release must be in all cases by deed. It is sufficient if the discharge be of as high a nature as the obligation. Thus a parole discharge of a parole engagement is good. 
    
    The Court called on Fuller to support his fourth plea; and he insisted that the issue he • had tendered was on a fact material, which was averred by the plaintiff. If the payee of a note payable at a place and day certain is not at the place, it cannot be material whether the promiser be there or not, since he could not have paid the money. 
    
    
      The Solicitor General.
    
    It was the duty of the debtor to seek his creditor. On a promise to pay money no demand is neces sary.  The neglect of the creditor to be at the place where the d< bt is made payable is not a discharge of the debt.
    
      
      
        Salk. 475. — Cro. Car. 551.
    
    
      
      
        Co. Lit. 232, a.
      
    
    
      
       2 Wils. 86, 376.
    
    
      
       1 Saund. 103, note (3.) — Doug. 690. — 1 D. & E. 638.
    
    
      
       1 Wils. 33. — 1 B. & P. 59, 60. — 1 Saund. 33.
    
   By the Court.

This is an action of assumpsit brought by the endorsee against one of several joint promisers in a negotiable note for the payment of money. The defendant pleads in bar, that one of the joint promisers, other than himself, had paid his share or proportion of the money promised to the promisee, before the note was assigned, and that, in consideration thereof, the promisee had acquitted all the promisers from any further demand on * the note. As the promise appears from the record to have been joint, if the defendant would avail himself of that fact, he snould have shown it as matter in abatement. A payment of part by one promiser cannot operate a discharge of the rest.

In a fourth plea the defendant says that the holder of the note was not present at the time and place appointed for payment But this is no bar to an action on a promise to pay money ; and the issue tendered was therefore an immaterial one. The pleas in bar are insufficient; and let judgment be entered on the verdict.  