We are of opinion that the facts stated in the plea of .the defendant Judson, admitting them to be true, constitute no defence to the action; and the plaintiff is entitled to judgment. This renders the rejection of the parol evidence offered to prove the plea, immaterial. It will not, therefore, be further noticed or considered.
The defendants executed a joint and several note to secure the payment of money loaned to one of them. From the note alone, it does not appear, that Judson signed as the surety of Allen; but this fact is stated in the plea, and was offered to be proved; it will, therefore, be considered true. As between themselves, then, Judson w'as the surety of Allen ; but, as between them and the payee, they were both principals. They were so, for the plain reason, that by making the note in this form, they agreed to be so. Perhaps the payee was unwilling to take any other security for his money. It is certain that the obligation of Judson, as a principal, is very different from what it would have been, had he merely indorsed the note ; and a party might well consider that he obtained much better security, by a joint and several obligation, than the indorsement or guaranty of another’s note would give him. Viewing the note as the joint obligation of both defendants, the same construction must be put upon it as to both of them. This is necessarily so, from its very nature. You cannot look at the plaintiff’s legal rights, in regard to one of the defendants, as different from what they are, in regard to the other, without at once destroying their joint liability, and changing a principal debtor into a mere surety. And this is the radical defect in this plea. It treats Judson as a mere surety; when in fact he is, in regard to the plaintiff, a joint debtor with Allen. It has sometimes been said, in regard to an instrument executed in this way, that a construction cannot be put upon it, which will be injurious to the rights of the surety; but with the exception of the cases from New-York, and cases in some of the states where they have statutes on the subject, it has no where been claimed, that you can so divide the instrument as to make the contract of one, different from that of the other. As, then, the obligation is the same, and is subject to the same construction, as *106to both defendants, it follows, that nothing will operate as a defence to it, for one of them, which would not also be a de-fence for the other ; and the facts stated in the plea being no defence for oné of the defendants, they must fail as to the other also.
It was said, that as Judson in fact signed the note as surety for Allen, he could have compelled the creditor to sue the principal, under the circumstances stated in the plea ; and that the discharge of Judson, under these circumstances, would be less oppressive to the creditor than a bill in equity to compel him to put the note in suit.
If this were so, we do not see in it any reason for sustaining the plea. To compel a party to bring a suit, is entirely different from the discharge of his note. If the plea was a good equitable defence, there might be no objection to treating it as a legal defence also, and not compel the party to resort to a court of equity. But, the simple fact, that Judson could have compelled the creditor to put the note in suit, proves nothing in favour of the plea. It would seem rather to operate against it. If the existence of these circumstances was a good defence for the surety, there would seem to be no occasion for the aid of a court of chancery.
The defendant, also, relies upon the authority of certain cases from New-York, Those cases do establish the doctrine for which he contends, so far as that state is concerned. But more modern cases in New-York, show, very clearly, that the Jaw is not so any where else. Their late cases on this subject refer to the case of Paine v. Packard, which first established this doctrine, as a departure from principle. In Herrick v. Borst & al. 4 Hill, 650. 656. Cowen, J. speaking of this subject, says: “What principle such a defence should ever have found to stand upon, in any court, it is difficult to see. It came into this court without precedent; was afterwards repudiated, by the court of chancery, as it always has been, both at law and in equity, in England ; but was restored, on a tie in the court of errors, turned by the casting vote of a layman.”
Such being the view of the courts in New-York, at this time, it is apparent, that the doctrine is only tolerated there ; *107because, as remarked by the same judge, the error, as to them, “ has become inveterate.”
We do not advise a new trial.
In this opinion the other Judges concurred.
New trial not to be granted.