It was observed by the Court, that where a note is made jointly and severally by several promisors, payable to the order of one of their own number, and is by him indorsed and negotiated, it is to be deemed a joint and several debt due to the holder from the promisors, in the same manner as if the payee had not been one of them ; that a release of one of several joint, or joint and several debtors, is a release of all; that the plaintiffs had a right to become parties, upon a condition precedent, and if that condition was of' such a nature that it would render the instrument inoperative without the consent of the other parties, then, until such assent given, expressly or by implication, the instrument, as the act of the *127plaintiffs, would be inoperative, or the operation of it suspended ; that the condition, that the property had not been attached by any valid attachment (whatever might be the case with the other conditions) was a condition precedent, and if, at the time when the deed was executed by the plaintiffs, the property had been attached and was then under a valid attachment, it avoided the deed, or rather the deed never took effect ; that it was questionable whether a release could be executed upon a condition subsequent, for if the debt is once released, it would seem to be gone forever ; that the instrument reciting that the property had been assigned to Hooker, the presumption was that some portion of it was of a nature to be charged by a trustee process ; that the attachment was made on the 12th of December and subsisted on the 14th, and the fact that it was afterwards discharge!}, either by the non-return of the writ, or by an entry that neither party appeared, was immaterial ; that the return of the officer was prima facie evidence and not conclusive, and it was competent for the plaintiffs, not being party nor privy to the trustee suit, to show, that in fact an attachment was made and was subsisting at the time when the plaintiffs executed the indenture, though the return of it was afterwards suppressed, by order of the plaintiff in the trustee suit, who alone could control it; that the misnomer of the trustee did not render the attachment void, but the assignee, having funds, might have been held under the service and return, though named “ Edward I. Hooker ” ; that if he had appeared, the process would have been amendable, and if he had not appeared, he might have been charged upon a scire facias setting forth the facts.
Nonsuit set aside and new trial granted.