If the debt for which a joint, joint and several or several obligor is bound is completely satisfied, the creditor can have no further right against anybody. Since there was but one debt though several persons were liable to pay it, after the debt has been paid by any of the debtors, it is necessarily extinguished as to all.24

If instead of payment in full, the creditor has received an accord and satisfaction from a joint, joint and several or several debtor, two situations are conceivable. It is possible that the debtor's performance was received as a full satisfaction for the creditor's entire claim; in which event any right against the other debtors is also discharged.25 Or it may be that the performance was not intended as a satisfaction of the debt itself, but merely of the creditor's right against, the individual debtor. If such is the agreement, the cases of joint or joint and several debtors must be distinguished from that of several debtors. Where there is merely a several liability, the creditor's entire claim is not discharged, and he is entitled to recover any balance due him from the other debtors, provided they are not sureties.26

Cowley v. Patch, 120 Moss. 137. See Pierce v. Kearney, 5 Hill, 82.

22 Dennett v. Chick, 2 Greenl. 191, 11 Am. Dec. 59; Stone v. Wainwright, 147 Mam. 201, 17 N. E. 301; Eastern Townships Bank v. Beebe, 53 Vt. 177, 38 Am. Rep. 686. A judgment in one State, however, operates as a bar and a, merger in another, as to all debtors of whom the first court had jurisdiction. McGilvrsy v. Avery, 30 Vt. 538.

23 Merriman v. Barker, 121 Ind. 74, 22 N. E. 902; Dennett v. Chick, 2 Me. 191, 11 Am. Dec. 59; Rand v. Nutter, 66 Me. 339; Odom v. Denny, 16 Gray, 114 (statutory); Wiley v. Holmes, 28 Mo. 286, 75 Am. Dec. 126; Olcott v. Little, 8 N. H. 259, 32 Am. Dec. 357; Burt v. Stevens, 22 N. B. 229, 232;

Yoho v. McGovem, 42 Oh. St. 11; Eastern Townships Bank v. Beebe & Co., 53 Vt. 177, 38 Am. Rep. 665; Bradley Engineering Co. v. Heybura, 66 Wash. 628, 106 Pac. 170. But see contra Fleming p. Ross, 225 111. 149, 80 N. E. 92.

24Thus a payment by one tort feasor as a complete satisfaction for a joint tort (for which the liability is joint and several), dischargee all. Cocke v. Jennor, Hob. 66; Matheson v. O'Kane, 211 Mass. 91, 97 N. E. 638, 39 L. R. A. (N. S.) 475; Brewer v. Casey, 196 Mass. 384,388, 82 N. E. 45; Himmelberger-Harrison Lumber Co. v. Dallas, 166 Mo. App. 49, 146 S. W. 06; Kropidlowski v. Paster & Vogel Leather Co., 149 Wis. 421, 135 N. W. 839,39 L. R. A. (N. S.) 509.

The greatest difficulty in determining the effect of a dealing with one co-debtor on the right against others arises where negotiable instruments are given by one of several co-debtors. Under the rule generally prevailing, a negotiable instrument given by a debtor takes effect only as conditional payment; that is, unless the negotiable instrument is paid at maturity, the original obligation is not discharged or merged.27 But it is universally agreed that the parties may agree that a negotiable instrument shall operate as absolute payment as soon as it is given.28 Accordingly a negotiable instrument given by one co-debtor, though given for the debt of a number of joint debtors, will not operate as a discharge of the joint co-debtors on their original obligation unless the negotiable instrument was taken in absolute payment.29 If, however, a negotiable instrument of one debtor is taken in absolute payment, even of the liability of one joint debtor all other joint obligors are discharged.30 The mere merger of the creditor's claim against one joint and several debtor in an obligation of a higher nature does not destroy the creditor's several right against the other co-debtors. No more complete merger of a claim can be made than by judgment, and a creditor of joint and several debtors is entitled to obtain judgment separately against each without thereby affecting his right of recovery against the others.31 A discharge by release or otherwise than by merger, of one joint and several debtor, however, illogically is held to discharge the others.32 But even a merger of the creditor's claim against one joint debtor where there is no several liability destroys the creditor's right against the others. The claim was against all and can have continued existence only as a claim against all. Accordingly, a judgment against one destroys the right against the others.33 And if one or more of a number of joint debtors give an obligation intended as satisfaction simply of the liability of those who give it, and not of the entire joint debt, their original indebtedness is merged in the new sealed instrument;34 and since the joint indebtedness is one and indivisible, the other joint debtors cannot be liable by themselves and, therefore, are discharged.35 If, however, the obligation of one of the joint obligors is given merely as collateral security, there is no merger and all the joint obligors continue liable on the original joint obligation. Thus if the individual bond of a joint debtor expressly state that it is to satisfy the joint debt only when paid in full,36 or if the new obligation is in terms merely a guaranty of the old,37 the joint indebtedness is not discharged. But whatever merges the cause of action against one joint obligor, merges it as to all.38

25Grubbe v. Pierce, 156 Wis. 29, 145 N. W. 207, 51 L. R. A. (N. 8.) 368; and see cases cited in preceding note.

26See cases cited supra, note, 24; also infra, Sec. 339.

27 See infra, Sec.Sec. 1922, 1923.


29 Prosser v. Evans, [1895] 1 Q. B. 108.

30 Moale v. Hollins, 11 Gil. & J. 11, 33 Am. Dec. 684. See also Grubbe v. Pierce, 156 Wis. 29, 145 N. W. 207, 51 L. R. A. (N. S.) 358.