In order to operate as a merger, the judgment must be rendered in an action between the parties to the contract or their legal representatives; and it will operate as a merger only as against those who are parties to the action or the legal representatives of such parties or those who claim under them.1 A judgment against one of two or more parties, who are severally liable, does not operate as a merger against the other parties, until such judgment is satisfied.2 An unsatisfied judgment against one of two or more joint and several promisors, is not a bar to an action against the other.3 Prom the nature of a joint contract,4 a judgment against less than all of the parties who are jointly liable upon such contract, operates as a merger of the cause of action against the remaining parties in the absence of statute.5 This result does not depend upon the ordinary principles of merger alone, but also upon the theory that the right of a joint promisor to be held jointly with the remaining promisors can not be taken from him by his consent, either by releasing the remaining joint promisors,5 or by taking judgment against the remaining joint promisors. The practical result of this rule has operated so frequently to relieve the joint promisor from liability, that it has been changed by statute, in some jurisdictions, so as to make a contract which would have been a joint contract at common law, equivalent to a joint and several contract. Under such statutes, a judgment against one of two or more joint contractors does not merge the contract as to the others.7

1 United States. Aspden v. Nixon, 45 U. S. (4 How.) 467, 11 L. ed. 1059; General Film Co. v. Sampliner, 252 Fed. 443.

Georgia. Booth v. Huff, 116 6a. 3, 94 Am. St. Rep. 98, 42 S. E. 381.

Indiana. Giles v. Canary, 99 Ind. 116; Corneille v. Pfeiffer, 26 Ind. App. 62, 59 N. E. 188.

Massachusetts. Hawkes v. Phillips, 73 Mass. (7 Gray) 284; Frost v. Thompson, 219 Mass. 360, 106 N. E. 1009.

North Carolina. Hix v. Davis, 68 N. Car. 231.

Ohio. Clinton Bank v. Hart, 5 O. S. 33.

Tennessee. Lowry v. Hardwick, 23 Tenn. (4 Humph.) 188.

Vermont. Sawyer v. White, 19 Vt. 40.

Washington. Petri v. Manny, 99 Wash. 601, 170 Pac. 127. A judgment against the debtor's administrator in one state does not merge the cause of action as against the debtor's administrator in another state. Nash v.

Benari, 117 Me. 491, 3 A. L. R. 61, 105 Atl. 107. This is true even if the two administrators are the same person. Nash v. Benari, 117 Me. 491, 3 A. L. R.

61, 105 Atl. 107.

2 Petri v. Manny, 99 Wash. 601, 170 Pac. 127.

3 Georgia. Booth v. Huff, 116 Ga. 8, 94 Am. St. Rep. 98, 42 S. E. 381.

Indiana. Giles v. Canary, 99 Ind. 116; Corneille v. Pfeiffer, 26 Ind. App.

62, 59 N. E. 188.

Massachusetts. Hawkes v. Phillips, 73 Mass. (7 Gray) 284.

North Carolina. Hix v. Davis, 68 N. Car. 231.

Ohio. Clinton Bank v. Hart, 5 O. S. 33.

Tennessee. Lowry v. Hardwick, 23 Tenn. (4 Humph.) 188.

Vermont. Sawyer v. White, 19 Vt. 40.

4 See Sec. 2073.

5England. King v. Houre. 13 M. & W. 494; Hammond v. Schofield [1891], 1 Q. B. 453; Hoare v. Niblett [1391],

A judgment operates as a merger as against those who claim under the parties, as well as against the parties themselves.8

If two public officers are each authorized to sue in the name of the state for the same cause of action, a judgment in an action brought by one is a bar to an action brought by the other.9 If full recovery can -not be had against the manufacturer of an infringing article, a judgment against him does not merge a cause of action against those who have purchased such infringing article from such manufacturer and who have made use thereof.10