The Elements of the Law of Contracts

or debtor. 2. Where the contract is joint on the part of the promisee or creditor.

debtors.

1. As to joint promisers or debtors :-If an action is to be Joint brought upon a contract made by several persons jointly, who are still living and are resident within the jurisdiction of the Court, they should all be joined as defendants in the action. If one of them is sued alone, he is not bound to answer to the merits of the action without the rest being sued with him; he may plead in abatement of the writ, that is, that the debt was due, or the promise was made by him, jointly with another or others, who is or are still living and resident within the jurisdiction of the Court, and not by himself alone. But that is the only mode in which he can object to being charged separately; and if he pleads to the merits of the claim, as by plea of non est factum or non assumpsit or the like, he cannot raise any valid objection on the ground of others being jointly liable with him (a).

The liability of one of joint promisers or debtors was explained by Abbott, J., as follows (b):-" By the law of England, where several persons make a joint contract, each is liable for the whole, although the contract be joint. In Whelpdale's case (c), the plaintiff had declared on a bond. made by the defendant, to which the defendant pleaded non est factum; the jury found that the bond was a joint bond, made by the defendant and another to the plaintiff, and upon this special verdict it was adjudged by the Court, that the plaintiff should recover: "because when two men jointly bound, in one bond, although neither of them is bound by himself, yet neither of them can say, that the bond is not his deed; for he has sealed and delivered it, and each of them is bound in the whole." That was a case upon a deed, but Price v. Shute (d) was a case upon a simple contract; and it was there held, that although the promise was a joint promise, yet the defendant, who was sued alone, could not say that he did not promise; and that the only way of taking

(a) Sheppard's Touchstone, p. 376. (b) Richards v. Heather, 1 B. & Ald. 29, 35.

are

Joint

debtors.

advantage of the omission of the other joint contractor, was by plea in abatement. These two cases establish this, that proof of a joint contract is sufficient to sustain an allegation that one contracted; and, therefore, there is no variance." Hence, each party to a joint contract is severally liable, in the sense that, if sued severally and he does not plead in abatement, he becomes liable to the creditor for the entire debt (u).

So, where more than one of several joint contractors are sued jointly, omitting others, the defendants may plead the non-joinder in abatement; but, if they do not, the proof of the joint contract is sufficient to charge them. Thus, in an action on a bill of exchange, the declaration charged it to have been drawn upon and accepted by the three defendants, and it was proved to have been drawn upon and accepted by the three, jointly with a fourth; it was held that there was no variance, and that the contract charged was proved (b).

The plea in abatement of the non joinder of a joint contractor cannot be sustained, where the alleged joint contractor is dead, or where he is not resident within the jurisdiction, or where he has been discharged from the debt by proceedings in bankruptcy or insolvency, or where he was an infant at the time of contracting and has since avoided the contract, or where the debt is barred as against him by the Statute of Limitations (c). In all which cases the may be charged by the creditor with the entire debt.

person sued

Where the joint contractors are sued jointly, and the judgment passes against them jointly, though the writ of execution must follow the judgment and charge all the defendants jointly, yet, in putting the writ in force, the whole amount of the judgment may be levied against one separately; consequently, each joint contractor becomes ultimately liable to the creditor for the whole, and not only for his proportionate part, although the contract be joint (d).

(a) Abbot v. Smith, 2 W. Bl. 947; see King v. Hoare, 13 M. & W. 494, 505; Cross v. Williams, 7 H. & N. 675; 31 L. J. Ex. 145.

(b) Mountstephen v. Brooke, 1 B. & Ald. 224.

2nd ed. 411, 412.

(d) Per Lord Mansfield, C.J., Bird Randall, 1 W. Bl. 387, 388; and see Abbot v. Smith, 2 W. Bl. 947, 949; per Lord Kenyon, C.J., Herries v. Jamieson, 5 T. R. 553, 556.

debtors.

The County Court Act, 9 & 10 Vict. c. 95, s. 68, enables Joint a plaintiff to sue any one or more joint debtors without the others, and to obtain judgment and execution against those sued.

Upon the death of one of several joint contractors, the liability under the contract devolves on the surviving joint contractors or joint contractor; the representative of the deceased cannot be sued at law jointly with the survivors. Consequently, the whole liability ultimately devolves upon the last surviving contractor, and after his death upon his representatives (a). A release made to the executor of one of joint obligors is inoperative, because upon the death of the one the debt survived against the others (b).

Upon the death of one of several joint contractors after judgment obtained against them, the liability upon the judgment devolves upon the survivors, and execution by fi. fa, or ca. sa. may be levied against them without reviving the judgment; but the judgment, as a charge upon the real estates of the joint contractors, remains unaltered by the death, and the creditor may have execution by elegit against the lands of the deceased, equally with the survivors, by reviving the judgment against the survivors and the terretenants of the deceased (c).

ditors.

2. As to joint promisees or creditors :-Where the contract Joint creis joint on the part of the promisees or creditors, all the persons entitled under it must join in suing upon it as joint plaintiffs (d). A disclaimer by one of the joint promisees, by a deed to which the promiser is not also a party, will not entitle the others of the joint promisees to sue alone upon the contract (e).

If one of the joint promisees is omitted, and the defect appears upon the record, it may be objected to by demurrer, or

(a) See Shepp. Touch. by Preston, p. 376; Richards v. Heather, 1 B. & Ald. 29; Calder v. Rutherford, 3 B. & B. 302. As to the liability in equity of the executor of a deceased joint contractor, see Wms. Ex. 5th ed. p. 1577.

(b) Ashbee v. Pidduck, 1 M. & W. 564.

(d) Eccleston v. Clipsham, 1 Wms. Saund. 153; Hatsall v. Griffith, 2 C.& M. 679; Pugh v. Stringfield, 3 C. B. N. S. 2; 4 ib. 364; 27 L. J. C. P.34, 225. (e) Wetherell v. Langston, 1 Ex.

634.

Joint creditors.

Several contracts.

by motion in arrest of judgment, or by error (a). If the objection does not appear upon the record, and the action proceeds to trial, there would be a variance between the contract appearing in fact and that alleged upon the record, which, unless amended, would be ground for a nonsuit or adverse verdict, and prove fatal to the plaintiff's case (b). The objection may be taken by the defendant at an earlier stage, by pleading in abatement, that the promise was made to the plaintiff and another jointly and not to the plaintiff alone, or by giving a notice in writing to the plaintiff to the same effect under the provision of the Common Law Procedure Act 1852, C. L. P. Act, 1852, s. 35. The omission may be amended by the plaintiff before trial under the provisions of s. 34 of the C. L. P. Act, 1852, or, unless the defendant has previously taken the objection, at the trial under s. 35 (c).

Where one of several joint creditors or promisees dies, the legal right under the contract devolves upon the survivors, who only must sue upon the contract. The representative of the deceased joint creditor or promisee cannot be joined in suing with the survivors, nor can he sue alone (d).

Several persons may contract separately respecting the same matter. Thus, several persons may bind themselves severally to another in respect of the same matter or debt, so that the creditor is entitled to claim the whole debt or performance against each debtor separately; or one person may bind himself to each of several persons in respect of the same matter or debt, so that each of such creditors is separately entitled to claim the whole debt or performance. The peculiar characteristic of such contracts is the identity of the debt or matter in the several contracts; so that the payment or performance of one of the contracts discharges all (e).

(a) Petrie v. Bury, 3 B. & C. 353; Pugh v. Stringfield, supra; Wetherell v. Langston, 1 Ex. 634.

(b) Chanter v. Leese, 4 M. & W. 295.

(d) Martin v. Crump, 2 Salk. 444; 1 L. Raym. 340; Anderson v. Mar

tindale, 1 East, 497; and see Jell v. Douglas, 4 B. & Ald. 374; Scott v. Godwin, 1 B. & P. 67, 74.

(e) This is called in the civil law obligatio in solidum, Mackeldey § 330; Warnkoenig, § 539; and see Code Civil, 1. 3, t. 3, s. 4. "Des obligations solidaires."

A frequent use of this mode of contracting occurs in guarantees, where a principal debtor and sureties become severally bound to the creditor for the debt or matter guaranteed; the creditor may sue one or other of the debtor and sureties separately for the whole amount, and payment by one discharges all as against the creditor; though, as between themselves, the sureties who are compelled to pay may be entitled to recover the amount from the principal debtor, or a proportionate part of it from the other sureties (a).

several con

Several persons may enter into concurrent contracts re- Joint and specting the same matter, binding themselves jointly as one tracts. party, and also severally as separate parties, at the same time; in which case, besides the one joint contract, there are also as many several contracts as there are separate persons; the debt or matter of the contract being one and the same in all the contracts thus made. Thus, a joint and several promissory note by several makers is equivalent to

joint note, and as many distinct separate notes as there are makers (b). "If A. and B. covenant jointly and severally, the covenant may be joint or several, and the covenantors may be sued either all together, or all of them apart, at the election of the covenantee" (c). "If three be bound jointly and severally in a bond, the obligee cannot sue two of them only, but he must either sue them all, or each of them separately" (d); but if two of the three obligors are sued alone, they can object only by pleading in abatement of the action, that there is another joint obligor (e).

But it seems that a contract cannot be so made, in respect of one and the same matter, as to entitle several persons under it both jointly and severally; they must either be entitled under it jointly only, or severally only (ƒ).

Where several persons join in a contract in respect of the Construc

(a) See ante, p. 42, 43.

(b) Beecham v. Smith, E. B. & E. 442; 27 L. J. Q. B. 257.

(d) Per Buller, J., Streatfield v. Halliday, 3 T. R. 779, 782.

(e) See ante, p. 214; 1 Wms. Saund. 154 a; 291 g.

(f) Slingsby's case, 5 Co. 18b; Bradburne v. Botfield, 14 M. & W. 559, 573; Keightley v. Watson, 3 Ex. 716, 723.

tion of contracts as to

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