Bryant v. Smith

By the Court.

We think the directions of the judge at the trial were right. Moses B. Smith was joint promisor on the note with Hiram. It is a well-settled rule that payment by one of two joint debtors is an extinguishment of the debt. Tuckerman v. Newhall, 17 Mass. 581. When this note was delivered by the promisee, who took it as guardian, to his successor, Moses B. Smith, one of the joint promisors, he, Smith, in effect became holder. He was liable as joint debtor in solido for the whole debt. The capacity of debtor and creditor both became united in him, and this operated as a merger. He could not sue his co-joint promisor severally, because the contract was joint; and he certainly could not sue himself. He became liable to account for it to his ward, nor could he put it in circulation so as to bind his co-promisor, or his estate. It was, we think, in legal effect, an extinguishment. Exceptions overruled.