Stearns

Mr. Justice Terry concurred.

This was an action in the Court below, by Stearns as plaintiff, against the defendants upon a joint and several promissory note. One of the defendants made default, the other answered, and pending the proceeding, final judgment was entered against the defaulting defendant. This is alleged as error, and it is contended that the defendant Arguello is discharged by the judgment against his co-defendant, such judgment operating as a merger of the note, and the substitution of a higher security.

If the contract declared on was joint, and not joint and several, the case would be relieved from, all its embarrassment, as we are satisfied, upon the weight of authority, the plaintiff would have lost his right of action against the appellant.

In the case of Sheehy v. Mandeville, 6 Cranch, the Supreme Court of the United States held, that a several suit and judgment against one of two joint makers of a promissory note, was not a bar to a joint action against both on the note, and that the whole of such note was not merged in the judgment against one on his individual assumpsit. This decision has never met the approbation of the bar, and has been questioned by…