Coburn v. Ware , 25 Me. 330 ( 1845 )

The opinion of the Court was by

Tenney J.

The defendants in the original action, Abner Coburn and Philander Coburn, having paid, before the maturity of the note, two thirds of its amount, “ being their part,” claim to be relieved from further liability. That they may be discharged from the obligation upon them, arising from their contract, it must appear by unequivocal proof, that they were released ; the terms used in the indorsement upon the back of the note are not of this character; an agreement between them, and the one who held the note at the time of the in-dorsement, that they were not to be called upon for the balance left unpaid, cannot be inferred with legal propriety ; it is rather evidence, that it was considered they had paid that, which, as between the signers of the note, they were bound to see discharged.

Can this action be maintained against the two Coburns, without amending the writ, by striking out the names of those, who have pleaded their discharge in bankruptcy ?

At common law, if a contract be proved to have been in fact made by all against whom, the suit is brought; yet is not legally binding upon all, on the ground, that one was not liable at the time the contract was entered into, as being under cov-erture, an infant, &c. the plaintiff would be nonsuited. “ But when one of the parties is discharged from liability by matter subsequent to the making of the contract, as by his bankruptcy, and certificate, the failure on the trial as to him, on such ground, does not preclude the plaintiff from recovering against the other parties; and should he plead his certificate, nolle prosequi as to him may be entered.” 1 Chit. PI. 32 and 33.

In this case, those who have pleaded their certificates were originally liable, qnd they claim to be exonerated by their discharge in bankruptcy obtained since. It is the privilege of the original plaintiff to contest the validity of these certificates, on the ground that they were fraudulently obtained. Bankrupt law of U. S. of 1841, <§, 4. And he has tendered an issue for that purpose, which has been joined. If the other two defendants have not been released, and are still liable upon the note, which is joint and not several, a several action against Jewett and Parlin would abate upon a proper plea; both issues presented can be tried in the present action, and a judgment can be entered upon a verdict in favor of the original plaintiff, upon one of the issues, though upon the other the verdict may be against him. Gray & al. v. Palmers & Hodgson, 1 Esp. R. 135. But if ho chooses to do so, he can amend by striking from his writ the names of those, who have pleaded their certificates.

Action to stand for trial.