Settle and Bacon v. Davidson and Saunders, 7 Mo. 604

Opinion of the Court, delivered by Scott, Judge. This was an action by petition in debt on a promissory note, commenced by appellees against the appellants. The appellants were partners, and the note was executed in their partnership name. The parties went to trial on an issue to the plea of nil debit, and other issues, and the appellees obtained judgment, from which this appeal is taken. . A bond given v-eral^debtors adebt due tract, is an ex-of*1”1fjl^sTraple contract debt, and becomes the sole debt bond.

It appeal’s from the evideneb presen oi exceptions, that after the execution of than account war. opened between the a, u .' G. Settle, one of the appellants. An ' t ; was charged in the account as one of iA and the account was liquidated by a [;c; Settle. he bill Of n ,c; rued on, • . j ..eeti Oil U tllCi’eof, h the said On this state, of facts the question rrf.ee.., -,/hother the acceptance of the bond of Settle, on;, uf hue psirtners, was an extinguishment of the simple evAruel debt on which suit war wrought.

It is manifest that the bond was obligatory upon the partner who executed it, and extinguished the simple eon-tract as to them. It is like the case of r-'lacro, it given to one joint debtor, discharge:.; Lc/A. A bond given for a. simple contract debt operator c.r a vcTea»e that debt, and makes another of a mi señor dismiíy, -i»-i « -j . . o -j -i • , '' t .. .i winch is bind/'u; nmy on him wno executed ;í. la che case of Tom v. Goodrich, 2 J. R., 214, coo of five tiers execute;; a bond for duties due the.

United States on the importation of goods, and it was held that ell contracts and liabilities in relation to the. dui’es were extinguished by the bond vyhich the partner had executed. So in the case of Clement v. Brush, 3 John.

Cases, 180, one partner executed a bond for a partnership debt, and the creditor afterwards executed a release to the other partner of all claims and demands against the firm, it was held the bond was an extinguishment of the prior simple contract debt, and was the sole liability of the partner who had executed it, and was not therefore affected by the release given, to ihe other partner of all partnership demands. The principle of these decisions is sanctioned by Judge Washington, in the case of the United States v. Astley. 3 Wash. C. C. R., 508.

It is clear that the bond was accepted by the appellees : the bill of exceptions shows that suit was brought on it by them, and a judgment recovered; nor is there any room to doubt but that the defence sot up by the appellants was available under the plea of nil debet, for it is settled that under that plea, any defence, but a set-off or the statute of limitations, may be. admitted in evidence. Chitty, 517. Judgment reversed.