Sec 826

The question whether a debt is joint or joint and several depends on the construction of the terms used.1 "With respect to the rights of two or more persons joining in a contract as creditors, the general rule of construction is to the effect that a contract will be construed to be joint or several, according to the interest of the parties, if the words are capable of that construction, or even if they are not inconsistent with it; if the words are ambiguous or will admit of it, the contract will be joint if the interest be joint, and it will be several if the interest be several."2 What has been said with regard to written promises applies equally to implied promises. The intent of the parties is to prevail.3 But as a general rule, where the consideration is joint the promise is joint.4

Sec 827

When a debt is payable by two or more debtors, it is on its face joint, and not joint and several.5 The question, However, is one of construction, to be governed by a survey of the entire document.6

Question is one of construction.

Debt due on its face from two or more debtors is joint.

"When the contract is joint and several, and the debt or demand considerable, it is most advisable to proceed separately, for if all the parties be joined, and one of them die after judgment and before execution, the remedy at law against the personal estate or assets of the deceased is determined." - Ch. on Pl. 16th Am. ed. (1879), 51; Foster V. Hooper, 2 Mass. 572; Com. V. Miller, 8 S. & R. 452.

1 See supra, sec 641 et seq.; infra, sec 829; Eaden V. Titchmarsh, 1 A. & E. 691; Knisely V. Shenberger, 7 Watts, 193; Jacobs V. Davis, 34 Md. 204; Carthrae V. Brown, 3 Leigh, 98; Lloyd V. Ashby, 2 C. & P. 138.

2 Leake, 2d ed. 457; Shepp. Touch. by Prest. 166; adopted in Sorsbie V. Park, 12 M. & W. 146; and Keightley V. Watson, 3 Ex. 716; and see Ludlow V. McCrea, 1 Wend. 228.

3 Hall V. Leigh, 8 Cranch, 51; Boggs V. Curtin, 10 S. & R. 211; supra, sec 627 et seq.

4 Supra, sec 506 et seq.; Jones V. Robinson, 1 Exch. 454; Chanter V. Leese,.

5 M. & W. 701; Hatsall V. Griffith, 2 Cr.

& M. 679. Joint obligations are joint and several under the Missouri statute. Knox Co. Bk. V. Cottey, 70 Mo. 150.

5 Shep. Touch. 375; King V. Hoare, 13 M. & W. 499; English V. Blundall, 8 C. & P. 332; Ehle V. Purdy, 6 Wend. 629; Yorks V. Peck, 14 Barb. 644.

6 Supra, sec 641 et seq. As to construction based on interest, see supra, sec 816.

Sec 828

When the singular "I" instead of the plural "we" is used, this is a presumption that the obligation was meant to be several;1 though even here distinctive phraseology in this respect must yield to the general tenor of the instrument.2 - The signing and sealing by an individual, as for a separate debt, implies intended severance.3

Sec 829

By the obligatio in solidum of the Roman law, each of several debtors became liable for the solid or entire debt, or one debtor binds himself alternatively and separately to each of several creditors.4 Supposing that there are several creditors and several debtors, each creditor can demand the whole debt from each debtor, and if one debtor pays, the rest are all relieved.5 A defence, therefore, purely personal to a single debtor or to a single creditor, does not, if it does not amount to payment, release the debt so far as it concerns the other parties. It is otherwise, however, when the debt is paid, or tendered, or when there is compensation or novation going to the whole obligation.6 In our own law we have illustrations of this kind of obligation in cases in which a principal debtor and sureties become bound severally for a particular debt. The creditor may sue either separately, though payment by any one of them extinguishes the debt so far as the creditor is concerned.7 In such case the surety who pays the debt is entitled to contribution from the principal.8