A promissory note given and received for and in discharge of an
open account is a bar to an action upon the open account, although
the note be not paid.
This Court will not direct the court below to allow the
proceedings to be amended.
A several suit and judgment against one of two joint makers of a
promissory note is no bar to a joint action against both upon the
The whole of, a joint note is not merged in a judgment against
one of the makers on his individual assumpsit, but the other may be
charged in a subsequent joint action if he pleads severally.
Error to the circuit court for the District of Columbia sitting
at Alexandria, in an action of assumpsit
Page 10 U. S. 254
brought by Sheehy against Joseph Mandeville and R. B.
The declaration consisted of three counts.
The first count was upon a promissory note as follows,
"James Sheehy complains of Joseph Mandeville and Robert Brown
Jamesson, lately trading under the firm of Robert Brown Jamesson,
of a plea of trespass on the case for that whereas, on 17 July,
1804, the said defendant Joseph Mandeville, secretly trading with
the defendant Robert B. Jamesson by way of buying and selling
merchandise, at Alexandria in the county aforesaid, under the name,
title, style, and firm of Robert Brown Jamesson, and whereas the
said defendants under the said name, firm, and style, on the said
17 July, 1804, at, &c., made their certain note in writing,
called a promissory note, subscribed by them by and under the name,
style, title and firm of Robert B. Jamesson, bearing date the same
day and year, and then and there delivered the said note to the
plaintiff, and by the said note did, under their firm aforesaid,
promise to pay to the said plaintiff or to his order $604.91 for
value received, negotiable at the Bank of Alexandria, by reason
whereof and by force of the law in such cases made and provided the
said defendants became liable to pay to the plaintiff the said sum
of money contained in the said note according to the tenor and
effect of the said note, and being so liable, they, the said
defendants, under the name and firm aforesaid, afterwards, to-wit,
the same day and year aforesaid, at Alexandria aforesaid,
The second count was indebitatus assumpsit
sold and delivered to the defendants under the name and firm of
Robert B. Jamesson.
The third count was a quantum valebant
for the same
Page 10 U. S. 255
The defendants were duly arrested, but Jamesson was discharged
by a judge upon entering a common appearance, he having been before
discharged under the act of Congress for the relief of insolvent
debtors within the District of Columbia, and no further proceedings
seem to have been had against him.
The defendant Mandeville appeared and filed two pleas.
"And the said defendant, by George Youngs, his attorney, comes
and defends the wrong and injury, when, &c., protesting that
the said goods, wares and merchandise, in the declaration
mentioned, were not sold and delivered to the said Robert B.
Jamesson and this defendant jointly, for plea saith that the said
James ought not to have and maintain his action aforesaid against
him because he says that heretofore, to-wit, on 17 July, 1804, at
Alexandria, the said Robert B. Jamesson, in the declaration named,
made his promissory note, payable to the said James Sheehy or
order, sixty days after date, for $604.91, negotiable at the Bank
of Alexandria, which said note, so as aforesaid made by the said
Jamesson, was given by the said Jamesson to the said James Sheehy
and by him received for and in discharge of an account or bill of
the said James Sheehy against the said R. B. Jamesson for sundry
goods, wares, and merchandise at the special instance and request
of the said R. B. Jamesson sold and delivered by the said James to
the said Robert B. Jamesson. And the said defendant Joseph avers
that the said goods, wares and merchandise mentioned in the
plaintiff's declaration are the same goods, wares, and merchandise
so as aforesaid sold and delivered to the said Robert B. Jamesson
by the said James Sheehy, and the same for which the said R. B.
Jamesson gave his aforesaid negotiable note, and none other, and
afterwards, to-wit, on 8 June, 1805, the said James Sheehy sued out
of the clerk's office of the Circuit Court of the District of
Columbia for the County of Alexandria his writ in an action of debt
upon the aforesaid note against the said Robert B. Jamesson, and
Page 10 U. S. 256
were had therein that at the July term of the said court in the
year 1806 a judgment was rendered in favor of the said James Sheehy
against the said R. B. Jamesson for the debt and damages mentioned
in the declaration filed in that action, to be discharged by the
payment of the said $604.91, with interest from 15 September, 1804,
till paid, which will at large appear by the records of the said
court now here remaining in the said Circuit Court of the District
of Columbia for the County of Alexandria, which judgment still
remains unreversed and in full force, all of which the said
defendant is ready to verify; wherefore he prays judgment whether
the said plaintiff his action aforesaid ought to have and maintain
against him upon the second and third counts in the said
"2d plea. And the said defendant, by leave of the court, . . .
for further plea saith that the plaintiff his action aforesaid
against him ought not to have and maintain on the first count in
his said declaration because he saith that heretofore, to-wit, on 8
June, 1805, the said James Sheehy sued out of the clerk's office of
the Circuit Court of the District of Columbia for the County of
Alexandria his writ in an action of debt against the said Robert B.
Jamesson, and afterwards, in July, filed his declaration therein
upon a note of the said Robert B. Jamesson to the said James
Sheehy, dated 17 July, 1804, payable sixty days after date, for
$604.91, for value received, negotiable at the Bank of Alexandria,
and afterwards such proceedings were had in the said suit that at
July term, of the said court in the year 1806 judgment was rendered
therein in favor of the said James Sheehy against the said Robert
B. Jamesson for the debt and damages in the said declaration
mentioned to be discharged by the payment of $604.91, with interest
from 15 September, 1804, until paid, and also costs of suit; all
which the said defendant is ready to verify by the record and
proceedings of the said court, . . . which said judgment still
remains unreversed and in full force, also to be verified by the
record. . . . And the
Page 10 U. S. 257
said defendant avers that the promissory note in the first count
in the plaintiff's declaration mentioned and described is the same
note upon which the aforesaid judgment was rendered and obtained,
against the said Robert B. Jamesson as aforesaid, and not other or
different, and this the said defendant is ready to verify;
whereupon the defendant prays judgment if the said plaintiff ought
to have and maintain his action aforesaid against him upon the
first count in the said declaration,"
To the first plea the plaintiff demurred, and assigned as causes
1. That the plea does not traverse the assumpsit laid in the
2. It does not expressly confess or deny that the goods were
sold and delivered to the said Joseph Mandeville and Robert B.
Jamesson, nor that the note in the declaration mentioned was given
by the said house and firm of Robert B. Jamesson.
3. An unsatisfied judgment against Robert B. Jamesson is no bar
to an action upon the same cause of action against the other
defendant, against whom no judgment has been rendered.
4. It does not aver that the judgment against Jamesson has been
5. It does not deny or admit that the defendant, Mandeville,
assumed to pay for the goods.
6. The plea is no answer to the declaration.
To the second plea the plaintiff also demurred, and assigned the
same causes of demurrer.
The judgment of the court below upon these demurrers was in
favor of the defendant Mandeville, and the plaintiff brought his
writ of error.
Page 10 U. S. 261
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
The plaintiff sold certain goods to Robert B. Jamesson,
Page 10 U. S. 262
a merchant of Alexandria, and took his note for the amount,
which he put in suit and prosecuted to a judgment. Afterwards,
supposing the other defendant Mandeville to be a secret partner, he
instituted a suit against Mandeville and Jamesson. The declaration
contains three counts. The first is on the note, and charges it to
have been made by the defendants under the name, firm and style of
Robert B. Jamesson. The 2d and 3d counts are for goods, wares and
merchandise sold and delivered to the defendants, trading under the
firm of Robert B. Jamesson.
The defendant Mandeville pleads two pleas in bar. The first goes
to the whole declaration, and the second applies only to the first
The first commences with a protestation that the goods, &c.,
in the declaration mentioned were not sold to the defendants
jointly, and then pleads in bar the promissory note which is
averred to have been given and received for, and in discharge of,
an account for sundry goods, wares, and merchandise sold and
delivered to the said Jamesson, and that the goods in the
declaration mentioned are the same which were sold and delivered to
the said Jamesson, and for which the said note was given. The plea
also avers that a suit was instituted and judgment obtained on the
note, and concludes in bar.
The second plea pleads the judgment in bar of the action.
To the first plea the plaintiff demurs specially, and assigns
for cause of demurrer,
1. That the defendant does not traverse the assumpsit laid in
2. That he does not expressly confess or deny that the goods,
&c., were sold and delivered to the defendants, trading under
the firm of R. B. Jamesson, or that the note was given by the said
Page 10 U. S. 263
3. Because an unsatisfied judgment against Jamesson is no bar to
an action against Mandeville.
4. It is not averred that the judgment has been satisfied.
5. The defendant does not deny or admit that he assumed to pay
for the goods, &c., in the declaration mentioned.
6. Because the plea is no answer to the declaration, or any
count thereof, and is informal.
The defendant joins in demurrer.
To the second plea the plaintiff also demurs specially, and
assigns for cause of demurrer the same, in substance, which had
been assigned to the first plea, and the defendant joins in the
demurrer to this plea likewise.
The other defendant, Jamesson, has put in no plea, nor are there
any proceedings against him subsequent to the declaration.
Although the first plea is not expressly limited to the 2d and
3d counts, yet it would seem from its terms to be intended to apply
to them alone. It sets up a bar to an action on an assumpsit for
goods, wares, and merchandise sold and delivered, and no such
assumpsit is laid in the first count.
If, however, it be considered as pleaded to the first count, it
is clearly ill on demurrer. For it does not deny or avoid the joint
assumpsit laid in that count.
It remains to inquire whether this plea contains a sufficient
bar to the 2d and 3d counts.
The plea is that the note was given and received for and in
discharge of an account or bill for goods, wares and merchandise
sold and delivered by the plaintiff to Robert B. Jamesson, which
are the same goods, &c., that are mentioned in the plaintiff's
Page 10 U. S. 264
That a note, without a special contract, would not of itself
discharge the original cause of action is not denied. But it is
insisted that if, by express agreement, the note is received as
payment, it satisfies the original contract, and the party
receiving it must take his remedy on it.
This principle appears to be well settled. The note of one of
the parties or of a third person may, by agreement, be received in
payment. The doctrine of nudum pactum
does not apply to
such a case, for a man may, if such be his will, discharge his
debtor without any consideration. But if it did apply, there may be
inducements to take a note from one partner liquidating and
evidencing a claim on a firm which might be a sufficient
consideration for discharging the firm. Since, then, the plaintiff
has not taken issue on the averment that the note was given and
received in discharge of the account, but has demurred to the plea,
that fact is admitted, and, being admitted, it bars the action for
The special causes of demurrer which are assigned do not in any
manner affect the case. Whether the promise was made by Mandeville
or not ceases to be material if a note has been received in
discharge of that promise, and the payment of the note need not be
averred, since its nonpayment cannot revive the extinguished
The next subject of consideration is the second plea, which
applies simply to the first count.
That count is on a note charged to have been made by Mandeville
and Jamesson, trading under the firm of Robert B. Jamesson. This,
not being denied, must be taken as true.
The plea is that a judgment was rendered on this note against
Robert B. Jamesson.
Page 10 U. S. 265
Were it admitted that this judgment bars an action against
Robert B. Jamesson, the inquiry still remains if Mandeville was
originally bound; if a suit could be originally maintained against
him; is the note, as to him, also merged in the judgment?
Had the action in which judgment was obtained against Jamesson
been brought against the firm, the whole note would most probably
have merged in that judgment. But that action was not brought
against the firm. It was brought against Robert Brown Jamesson
singly, and whatever other objections may be made to any subsequent
proceedings on the same note, it cannot be correctly said that it
is carried into judgment as respects Mandeville. If it were, the
judgment ought in some manner to bind him, which most certainly it
does not. The doctrine of merger (even admitting that a judgment
against one of several joint obligors would terminate the whole
obligation, so that a distinct action could not afterwards be
maintained against the others, which is not admitted) can be
applied only to a case in which the original declaration was on a
joint covenant, not to a case in which the declaration in the first
suit was on a sole contract.
In point of real justice, there can be no reason why an
unsatisfied judgment against Jamesson should bar a claim upon
Mandeville, and it appears to the Court that this claim is not
barred by any technical rule of law, since the proceedings in the
first action were instituted upon the assumpsit of Jamesson
It is not necessary to decide whether this action could have
been maintained against Mandeville singly with an averment that the
note was made by Mandeville and Jamesson. The declaration being
against both partners, that question does not arise. The
declaration is clearly good in itself, and the plaintiff may
recover under it unless he be barred by a sufficient plea.
Admitting for the present that a previous judgment
Page 10 U. S. 266
against Jamesson would be a sufficient bar as to him had
Jamesson and Mandeville joined in the same plea, it would have
presented an inquiry of some intricacy how far the benefit of that
bar could be extended to Mandeville.
But they have not joined in the same plea. They have severed,
and as the whole note is not merged in a judgment obtained against
Jamesson on his individual assumpsit, the Court is not of opinion
that Mandeville has so pleaded this matter as to bar the
In this plea it was necessary to negative the averment of the
declaration that the note was made by Mandeville as well as
Jamesson, or to show that the judgment was satisfied. The defendant
has not done so. He has only stated affirmatively new matter in bar
of the action, which new matter, as stated, does not furnish a
sufficient bar. It is not certain that this plea would have been
good on a general demurrer, but on a special demurrer it is clearly
The judgment therefore is to be reversed, and, as no other
plea is pleaded, judgment must be rendered on the first count in
favor of the plaintiff.
The judgment of the court was as follows:
This cause came on to be heard on the transcript of the record,
and was argued by counsel, on consideration whereof the Court is of
opinion that there is error in the judgment of the circuit court in
overruling the demurrer to the first plea so far as the same is
pleaded in bar of the first count in the declaration, and that
there is error in overruling the demurrer to the second plea;
wherefore it is considered by this Court that the judgment of the
circuit court be reversed and annulled and that the cause be
remanded to the circuit court with directions to sustain the
demurrer to the first plea so far as the same is pleaded in bar of
the first count, in the plaintiff's declaration, and also to
sustain the demurrer to the second plea, and to render
Page 10 U. S. 267
judgment in favor of the plaintiff on his said first count, and
to award a writ of inquiry of damages. *
* After the opinion was given, C. Lee moved for a direction to
the court below to allow a plea of nonassumpsit.
said it had never given directions respecting amendments, but had
left that question to the court below. This Court cannot now
undertake to say whether the court below would be justified in
granting leave to amend.