Wherever an obligation is undertaken by two or more, or a right given to two or more, it is the general presumption of law that it is a joint obligation or right. Words of express joinder are not necessary for this purpose; but on the other hand, there should be words of severance, in order to produce a several responsibility or a several right. (a)

Whether the liability incurred is joint, or several, or such that it is either joint or several at the election of the other contracting party, depends (the rule above stated being kept in view) upon the terms of the contract, if they are express; and where they are not express, upon the intention of the parties as gathered from all the circumstances of the case. (b) It may *be

(a) Hill v. Tucker, 1 Taunt. 7; Hat-sail v. Griffith, 4 Tyr. 487; King v. Hoare, 13 M. & W. 499, per Parke, B.; English v. Blundell, 8 C. & P. 332; Yorks v. Peck, 14 Barb. 644. - With respect to instruments under seal, it is said in Shep. Touch. 375: " If two, three, or more bind themselves in an obligation, thus, obligamus nos, and say no more, the obligation is, and shall be taken to be, joint only, and not several." And see Ehle v. Purdy, 6 Wend. 629. - If an instrument, worded in the singular, is executed by several, the obligation is a joint and several one; and those who thus execute it may be sued either separately or together. Hemmenway v. Stone, 7 Mass. 58; Van Alstyne v. Van Slyck, 10 Barb. 383; Wallace v. Jewell, 21 O. St. 163; Powell, J., Sayer v. Chaytor, 1 Lutw. 695, 697; Marsh v. Ward, Peake, Cas. 130; Clerk v. Blackstock, Holt. 474; and see Hall v. Smith, 1 B. & C. 407. See also Crosby v. Jeroloman, 37 Ind.

264, 274, citing the text with approval. But, in Slater v. Magraw, 12 G. & J.

265, where (on the sale of a negro) the form of the covenant was, " I do hereby obligate to give the said William

Slater a good title for said boy when called on. W. M. F. Magraw (seal). Security: George H. Dutton (seal)," - a demurrer to a count declaring on this as a joint and several covenant, was sustained, and the court held that the covenant to convey the title was the covenant of Magraw alone; that the covenant of Dutton was a several covenant as surety that Magraw would make the title when called on for that purpose; and that therefore an action on the covenant to convey could not be maintained against them jointly. See, also, De Ridder v. Schermerhorn, 10 Barb. 638; Allen v. Fosgate, 11 How. Pr. 218.

(b) Wilde, J., in Peckham v. North Parish in Haverhill, 16 Pick. 274, 283. In the following cases the liability was held to be joint: Wigmore and Wells' case, 3 Leon, 206; Wightman v. Chart-man, Gould, 83; Anonymous, Moore, 260; Coleman v. Sherwin, 1 Salk. 137, 1 Show. 79; Byers v. Dobey, 1 H. Bl. 236; Exall v. Partridge, 8 T. R. 308; Wathen v. Sandys, 2 Camp. 640; For-ster v. Taylor, 3 id. 49; Eaden v. Titch-marsh, 1 A. & E. 691; London Gas Light doubted, however, whether any thing less than express words can raise a liability which shall be at once a joint and a several liability.

Where the obligation is joint and several, an ancient and familiar rule of law forbids it to be treated as several as to some of the obligors, and joint as to the rest. The obligee has the right of choice between the two methods of proceeding; but he must resort to one or the other exclusively, and cannot combine both; that is, he must proceed either severally against each, or jointly against all. (c)1

Co. v. Nicholls, 2 C. & P 365; Phillips v. Bonsall, 2 Binn. 138 In the following cases the liability was held to be several: 39 H. 6, 9, pl. 15; Bro. Abr. Covenant, pl. 27; s. c. Viner Abr. Covenant (M. a.), pl. 1, 2; s. c. Mathewson's case, 5 Rep. 22; Brown v. Doyle, 3 Camp. 51, n.; Gibson v. Lupton, 9 Bing. 303; Collins v. Prosser, 1 B. & C. 682; Hudson v. Robinson, 4 M. & Sel. 475; Smith v. Pocklington, 1 Cr. & J. 445; Fell v. Goslin, 7 Exch. 185; Harris v. Campbell, 4 Dana, 586; M'Cready v. Freedly, 3 Rawle, 251; Ernst v. Bartle, 1 Johns. Cas. 319; Ludlow v. McCrea, 1 Wend. 228; Howe v. Handley, 25 Me. 116; Commercial Bank v. Gorham, 11 R. I. 162 In the following cases the liability was held to be joint and several: Constable v. Clobery, Pop. 161; Burden v. Ferrers, 1 Sid. 189; Hankinson v. San-dilaus, Cro. J. 322; Linn v. Crossing, 2 Roll. Abr. 148, Obligation (G); Lilly v. Hodges, 1 Stra. 553, 8 Mod. 166; Robinson v. Walker, 1 Salk. 393, 7 Mod. 153. The words there were, conveniunt pro se et quo-libet eorum. But Holt, C. J., dissenting from the majority, thought this might be considered joint by reason of the word of agreement (conveniunt) being in the plural, and not being repeated in the singular, so as to express a distinct several promise. Bolton v. Lee, 2 Lev. 56; Sewer v. Bradfield, Cro. E. 422; May v. Woodward, Freem. 248; Enys v. Don-nithorne, 2 Burr. 1190; Mansell v. Bur-redge, 7 T. R. 352; Bangor Bank v. Treat, 6 Greenl. 207.

(c) Streatfield v. Halliday, 3 T. R. 782; Cabell v. Vaughan, 1 Wms. Saund. 291, f, n. 4; Bangor Bank v. Treat, 6 Greenl. 207 In the case of a joint and several debt, judgment (without satisfaction) recovered against one of the debtors is no bar to an action against another. Per Popham, C. J., Brown v Wootton, Cro. J. 74, cited by Parke, B., in King v. Hoare,

13 M. & W. 564. But a judgment, though unsatisfied, recovered against one of two joint debtors, is a bar to an action against the other, or to an action against both. 3 Kent's Com. 30; Ward p. Johnson, 13 Mass. 148; Kingsley v. Davis, 104 Mass. 178; Cowley v. Patch, 120 Mass. 137; Candee v. Smith, 93 N. Y. 349; King v. Hoare, 13 M & W. 494; Kendall v. Hamilton, 4 App Cas. 504. But Collins v. Lemasters, 1 Bail. 348; Treasurers v. Bates, 2 Bail. 362; Sheehy v. Mande-ville, 6 Cranch, 253, Harbeck v. Pupin, 123 N. Y. 115 (statutory), are contra. In King v. Hoare, 13 M. & W. 494, Sheehy v. Mandeville was cited, but, Parke, R., giving the judgment of the court, observed: " During the argument, a decision of the Chief Justice Marshall, in the Supreme Court of the United States, was cited as being contrary to the conclusion this court has come to; the case is that of Sheehy v. Mandeville. We need not say we have the greatest respect for every decision of that eminent judge; but the reasoning attributed to him by that report is not satisfactory to us; and we have since been furnished with a report of a subsequent case, in which that authority was cited and considered, and in which the Supreme Judicial Court of Massachusetts decided that, in an action against two on a joint note, a judg-, ment against one was a bar. Ward v. Johnson, 13 Tyng. 148." In Robertson v. Smith, 18 Johns. 484, which was the case of a solvent dormant partner, discovered after judgment obtained against the insolvent ostensible partner, Spencer, J., while holding the plaintiff's action to be barred, suggested that the court on application might be induced to vacate the former judgment. Where one contracts in writing with three persons to give a bill of sale of two thirds of a vessel to two of them, and of one-third to the