The defendants were indebted to the plaintiffs on book, in an amount unadjusted. On the 25th February, 1832, Holly, one of the defendants, reckoned with the plaintiffs, and found due to them one hundred and eighty dollars, for which he gave his own separate note, signed only with his own name, and which the plaintiffs received and entered upon their book to the credit of Holly Sf Co. This note was never paid; but it was sued and judgment recovered upon it against Holly; and this judgment still remains unsatisfied, and Holly has become insolvent.
*478Jt is unnecessary to consider the question which has been so the subject of judicial discussion, whether this note ought to be applied in payment of an equal amount of the plaintiffs’ demand against Holly fy Co. ; because the question of fact, whether the note was received in satisfaction, was distinctly submitted to the jury, and decided in the negative.
But it is claimed, that although theno¿e cannot operate as a satisfaction of so much of the plaintiffs’ claim; yet that the judgment upon that note, though unsatisfied, will so operate. We think otherwise. The note itself not having been received in satisfaction, a judgment upon it could not affect its operation in this respect. The judgment merges only the cause of action upon which it was rendered, — and that was the note against Holly alone, — and not the original book debt against Holly Sf Co. All the present defendants, except Holly, were strangers to the note and to the judgment upon it; andas the judgment could not operate against them, neither will it in their favour. Yet if the judgment had been paid, the defendants would have been entitled to the benefit of the payment, in the same manner and in no other, than if Holly had paid the debt without either note or judgment. In such cases, it is the satisfaction of the original debt only, which discharges it. Drake v. Mitchell, 3 East 251.
The ground upon which the defendants place themselves, is, that as the original cause of action furnished the consideration of the note, the judgment, therefore, upon the note, was a judgment upon that original cause of action, and merged it. This position is fallacious. The conclusion does not follow the premises; for although the book debt against Holly &. Co. might and did enter into the consideration of the note made by Holly, yet the consideration of a contract is not the contract itself; and it is the contract only which constitutes the cause of action. The causes of action were entirely distinct; and the same evidence would not support, nor even conduce to support them both. The cause of action upon the note was several, against Holly alone ; but upon the book account was joint, against Holly & Co. The note was an express contract, and collateral to the original cause of action; the book account was, or might have been, an implied contract only ; and it was the original demand against the original debtors. *4791 Stark. Ev. 198. Johnson v. Smith, 8 Johns. Rep. 383. Rice v. King, 7 Johns. Rep. 20.
The present, therefore, is not a case in which the plaintiffs have recovered a judgment against one joint debtor, and are now seeking to recover another, for the same matter, cause and thing, against all the joint debtors. If it was, we might be called upon to consider the comparative merits of the conflicting opinions on this subject of the supreme court of the United States, in the case of Sheehy v. Mandeville & al. 6 Cranch 253. and of the supreme court of the state of New- York, in Robertson v. Smith & al. 18 Johns. Rep. 459.
The case of Drake v. Mitchell, 3 East, 251. recognizes the principles here advanced, and seems to us entirely conclusive in this case. That was an action of covenant against three joint covenantors, upon an indenture of demise .The defendants, as to part of the sum demanded, pleaded, that Mitchell, one of the defendants, had theretofore made his promissory note for 1117 2s. 3d. part of said sum demanded, and had delivered the same to the plaintiff; that the plaintiff had afterwards sued the defendant Mitchell on that note, and had recovered judgment against him upon the same, which judgment then remained in force and unsatisfied. To this part of the plea the plaintiff demurred, because it was not avowed in the plea, that the note was received in satisfaction ; and for this cause the court held the plea to be insufficient. And Lord Ellenborough says : “ I have always understood the principle of transit in remjudi-catam to relate only to the particular cause of action in which the judgment is recovered, operating as a change of remedy from its being of a higher nature than before.” And Le Blanc, J. says : “ The giving of another security, which in itself would not operate as an extinguishment of the original one, cannot operate as such, by being pursued to judgment, unless it produce the fruits of a judgment.”
We do not devise a new trial.
In this opinion all the Judges concurred.New trial not to be granted.