Same - Survivorship

Upon the death of one of several joint promisors, the liability devolves upon the survivors. The personal representative of the deceased promisor cannot be sued jointly with the survivors. The whole liability, in this way, ultimately devolves upon the last surviving promisor, and, after his death, upon his representative.24 The estate of a deceased joint debtor may be charged in equity, unless he was merely a surety, and received no benefit from the contract.25

(Ind.) 95; Sweigart v. Berk, 8 Serg. & R. 308; McGregor v. Balch, 17 Vt. 567; Sinsheimer v. Skinner Mfg. Co., 165 111. 116, 46 N. E. 262. See "Contracts,'* Dec. Dig. (Key-No.) § 182; Cent. Dig. §§ 780-787.

22 Rice v. Shute, 5 Burrows, 2611; Richards v. Heather, 1 Barn. & Ald. 29; Wilson v. McCorruick, 86 Va. 995, 11 S. E. 976; Elder v. Thompson, 13 Gray (Mass.) 91; Maurer v. Midway, 25 Neb. 575, 41 N. W. 395; Mountstephen v. Brooke, 1 Barn. & Ald. 224; First Nat. Bank v. Hamor, 7 U. S. App. 69, 1 C. C. A. 153, 49 Fed. 45; Nash v. Skinner, 12 Vt. 219, 36 Am. Dec. 338; Hicks v. Cram, 17 Vt. 449; Lieberman v. Brothers, 55 N. J. Law, 379, 26 Atl. 828; Coon v. Anderson, 101 Mich. 295, 59 N. W. 607. Where joint debtors are sued jointly, and a joint judgment recovered, the whole amount of the judgment may be levied against one. Bird v. Randall, 1 W. Bl. 388. Where judgment is thus obtained against less than all the joint debtors, it merges or extinguishes the right of action as against all. King v. Hoare, 13 Mees. & W. 494; Kendall v. Hamilton, 4 App. Cas. 504; Mason v. Eldred, 6 Wall. 231, 18 L. Ed. 783; Ward v. Johnson, 13 Mass. 148. Otherwise where the judgment is recovered against one of the joint debtors on a check given by him for the demand. Prosser v. Evans, 1 Q. B. (1895) 108. See "Contracts," Dec. Dig. (Key-No.) § 182; Cent. Dig. §§ 780-787.

23Whelpdale's Case, 5 Coke, 119; Rice v. Shute, 5 Burrows, 2613. See "Contracts," Dec. Dig. (Key-No.) § 182; Cent. Dig. §§ 780-787.

24Richards v. Heather, 1 Barn. & Ald. 29; Gere v. Clark, 6 Hill (N. Y.) S50; Brown v. Benight, 3 Blackf. (Ind.) 37, 23 Am. Dec. 373; Foster v. Hooper, 2 Mass. 572; Stevens v. Catlin, 152 111. 56, 37 N. E. 1023; Hoskinson v. Eliott, 62 Pa. 393; Atwell's Adm'rs v. Milton, 4 Hen. & M. (Va.) 253; Clark's Ex'rs v. Parish's Ex'rs, 1 Bibb (Ky.) 547; Murphy v. Weil, 92 Wis. 467, 66 N. W. 532. As to the effect of the death of a joint debtor after judgment, see Leake, Cont. 215; Harbart's Case, 3 Coke, 14a. The doctrine of survivorship is virtually abolished by statute in most states. Taylor v. Taylor, 5 Humph. (Tenn.) 110; Williams v. Bradley, 5 Ohio Cir. Ct. R. 114; Fisher v. Hopkins, 4 Wyo. 379, 34 Pac. 899; Bachelder v. Fiske, 17 Mass. 464. See "Contracts," Dec. Dig. (Key-No.) § 182; Cent. Dig. §§ 780-787.

25Davis v. Van Buren, 72 N. Y. 587; Richardson v. Draper, 87 N. Y. 337. See "Contracts," Dec. Dig. (Key-No.) § 182; Cent. Dig. §§ 780-787.

Same - Release

At common law, a release of one joint debtor by operation of law - as by a discharge in bankruptcy or insolvency - does not affect the liability of the others.26 It is otherwise, however, where the release is by an act of the creditor. In the latter case the other debtors are discharged.27 A mere covenant not to sue one joint debtor, it seems, does not operate as a discharge of the others.28 . ,