object of the bond that it was the intention of the parties to be bound severally and not jointly, and therefore that the words "we bind ourselves" instead of “I bind myself" were not sufficient to control and overcome the plain general intent, and make the obligation joint as well as several. (r) JOINT and SEVERAL contracts.-The rule that covenants are to be treated as joint or several, according to the interest of the parties in the subject matter of the contract, (s) relates only to the parties suing-not to the parties sued. If two persons covenant jointly and severally with another, the covenantee may bring an action against one of the covenantors only, though their interest in the subject matter of the covenant be joint; () as where A. lets land to B. and C. and they covenant jointly and severally with the lessor to pay the rent, or the like, he may bring an action against either of the covenantors, because they are sureties for each other for the due performance of the contract; and it is as competent for each of them to covenant for the other as it is for a stranger to covenant for both, which is a common thing. (u) A covenant by two or more persons "for ourselves and each of us," or "for ourselves and every of us," is a joint and several covenant. (x) It has been held that where the lessees in the first covenant of a lease"covenant jointly and severally in manner following," and then enter into various other covenants containing no words of severalty or severance that the joint and several lien in the first covenant, extends to all the subsequent covenants in the absence of any express words manifesting an intention to the contrary. (y) If several persons enter into a joint bond or other contract, and in the obligatory part make use of the pronoun I instead of we they are jointly and severally bound. Thus, where three persons executed a bond the obligatory part of which was couched in the following terms: "I bind myself, my heirs, executors and administrators, by these presents sealed with our seals," the contract was held to be joint and several. (z) So where a promissory note signed by two persons commenced with the words "I promise to pay," it was held that as the note began in the singular number it must be taken to be a joint and several promissory (r) Collins v. Prosser, 1 B. & C. 682; 3 D. & R. 112. (8) Ante, 267, 273. (t) 1. Wms. Saund. 154, n. 1. (u) Enys v. Dennithorn. 2 Burr. 1190. (x) May v. Woodward, Freem 248. Robin son v. Walker, 7 Mod. 54; 1 Salk. 393, s. c. Bolton v. Lee, 2 Lev. 56, 3; Reb. 39, 50, s. c. Lilly v. Hodges, 8 Mod. 106. (y) Duke of Northumberland v. Errington, 5 T. R. 522. (z) Sayer v. Chaytor, 1 Lutwych, 696. LLL note. (a) And where three persons agreed to refer certain disputes between them to arbitration, and "jointly and severally" promised and agreed to perform the award and the arbitrator awarded, that two of them should pay a sum of money to the third, and settled and directed the amount that was to be paid by each, it was held that each was liable for the whole amount awarded as well as for his individual share. (b) It has been held that if a party of friends dine together at a tavern, they are jointly and severally liable for the entire cost of the entertainment in the absence of circumstances showing an express intention to the contrary. (c) If, therefore, A. invites B. to dine at an inn, and after dinner A. goes away without paying the reckoning, B. is liable to the inn-keeper for the full amount of his bill, unless the latter knew that B. came as a GUEST on the invitation of A. (d) No certain rule of law, however, can be laid down to regulate the joint or several liability upon implied contracts, as the right of action entirely depends upon the varying facts of each particular case, and the inference a jury may be disposed to draw from them. In a case where provisions were furnished for the use of the officers of a regimental mess, in camp, Lord Kenyon seems to have thought that the officers were severally liable only in respect of the articles used and consumed by each. (e) When the contract sued upon is joint and several, the plaintiff must treat the contract as wholly joint, or wholly separate, and must sue all the parties together, or each of them by himself: he cannot select two, three, or more of them as defendants, to the exclusion of the others, unless he is expressly authorized so to do. (f) If, however, some of the parties should be inadvertently omitted, the mistake is no ground of nonsuit, but advantage must be taken of the nonjoinder, as we have before seen, by a plea in abatement. (g) It will frequently be found advisable to sue the parties to a joint and several contract separately; for if one of the joint defendants dies pending the action, his personal representative is discharged, and the surviving defendants only are chargeable. (2) In the English, as in the civil law, the pursuit of one or more of several debtors, who are each severally (a) March v. Ward, Peake, 177. Clerk v. Blackstock, Holt, 474. Hall v. Smith, 1 B. & C. 409; 2 D. & R. 587. Exparte Buckley, 14 M. & W. 469. (b) Mansell v. Burredge, 7 T. R. 352. (c) Forster v. Taylor, 3 Campb. 49. (d) Rolle's Abr. 24, 31. (e) Brown v. Doyle, 3 Campb. 51. (f) Streathfield v. Halliday, 3 T. R. 782. liable for the whole, does not affect or prejudice the right against the others, until the creditor has obtained satisfaction of his demand. Joint and several PURCHASES.-If two persons join in giving a written order for an undivided parcel of goods, they are jointly liable for the price of them, (i) unless it appears from the written correspondence of the parties, and the surrounding circumstances of the transaction, that it was understood between the purchasers and the vendors that the former were not to be jointly responsible for the whole price, but that there should be a separate contract with each, and that each should be liable for a moiety of the purchase money, and not for the whole amount. () If two persons separately employ an agent to buy goods for their separate use and consumption, and he goes into the market and purchases in one lot, the employers or principals are not jointly responsible for the payment of the purchase-money; (7) but if they give him a joint commission, they will be jointly and severally responsible for the price of them, so that any one of them may be made to pay the whole purchase-money, whether the goods, when bought, were to be disposed of for their joint benefit, or whether they were to be divided and holden by them in severalty, or disposed of for their separate use. Though the agent be not authorized to purchase on the joint account of his employers, "yet if all agree to share in goods to be purchased, and in consequence of that agreement one of them go into the market and make the purchase, it is the same as if all the names had been announced to the seller, and therefore all are liable for the value of the goods." (m) There is an important distinction, however, to be observed between a joint purchase through the medium of an agent acting under a joint authority from the purchasers, and a sub-contract or sub-purchase from a man who bought as a principal on his own account, and was not at the time of the making of the contract, the agent of the parties who subsequently became purchasers of the goods from him. If a man, for example, goes into the market, and buys an undivided parcel or lot of goods on his own credit, and as a speculation of his own, and before he has paid the purchase-money to the party from whom he bought, sells them again in separate portions to subsequent purchasers, these last cannot of course be made responsible for the payment of the original purchase-money to the (i) Germain v. Frederick, 1 Wms. Saund. 291, c. (k) Gibson v. Lupton, 9 Bing, 305; 2 M. & Sc. 371. (1) Hoare v. Dawes, Doug. 371. Coope v. Eyre, 1 H. Bl. 37. Ante, 454. (m) Per Lord Ellenborough, Gouthwaite v. Duckworth, 12 East, 426. So by the French law, "Et s'ils sont plusieurs qui l'ont preposè ils en sont tous tenus solidairement sans aucune exception de division ni de discussion." Poth. (OBLIGATIONS,) No. 453. first vendor. So if the original purchaser of an undivided parcel of goods, such as a pipe of wine, or a tun of oil, subsequently makes a sub-contract with other parties for the taking by them of particular shares in his purchase, this subdivision of his beneficial interest under the original contract does not render the persons claiming under him jointly responsible with himself for the performance of the original contract. (n) If one of several joint contractors dies the survivors must be sued to the exclusion of the personal representative of the deceased; but if the contract be a joint and several contract the action may be brought either against the personal representative or the survivors. (o) If a release be granted to one joint contractor all will be released; and if persons are jointly and severally bound for the performance of a single act or duty, a release thereof as to one will operate as a release to all. (p) But a covenant not to sue one of two joint and several contractors will not operate as a release of both; (q) nor will a judgment recovered against one of them operate as a discharge to the other. (r) (n) Coope v. Eyre, 1 H. Bl. 37. (o). Ante 285, 286. Towers v. Moor, 2 Vern. 99. (p) Hammond v. Roll, March, 202. Cheetham v. Ward, 1 B. & P. 633. Nicholson v. Revell, 4 Ad. & E. 683. Rex v. Bayley, 1 C. & (r) King v. Hoare, 13 M. & W. 494. 883 ADDENDA ΤΟ CHAPTER XIX. LIABILITIES OF PROVISIONAL COMMITTEE-MEN. To the last paragraph of page 518 should be added the following passage. The mere fact of a person's having agreed to become a meraber of a provisional committee will not render him responsible upon the contracts and for the debts and engagements of such committee. "Such an agreement amounts to no more than a promise that he would act with other persons appointed or to be appointed for the purpose of carrying some particular scheme into effect. The term "committee" means an individual or a body to which others have committed or delegated a particular duty, or who have taken on themselves to perform it in the expectation of their acts being confirmed by the body they profess to represent or act for. An agreement to be a committee-man is an agreement to become one of that body. The schemes may be various; to establish an hospital or place of emigration to which persons are to subscribe merely for charitable motives; or partly from these motives; partly from others; or a proprietary school, or literary institution, or assembly-room in which they are to be beneficially interested as shareholders; or to obtain an act for a bridge, drainage, railroad, or canal. But whatever the object may be, it makes little or no difference in the position of the person agreeing to act as a committee-man. If the object of some, most, or all, is gain to themselves |