It was decided in Slingsby's case16 that joint and several rights could not be created under a contract; and this principle has been regarded as settled ever since that decision,17 though there are not many modern decisions on the point, and though the logic of the rule has been questioned.18
If the question is analyzed it will be found that there is this measure of reason in the rule of Slingsby's case. It X is bound to A, B and C, to give them something jointly, an obligation to A alone to give him that thing will not be a contract for the same performance and it is of the essence of joint and several contracts that each of the several contracts shall be for the same performance as the joint contract. But, on the other hand, there is no logical reason why X should not bind himself by a separate promise to A to perform to A, B and C. This would be a contract for the benefit of a third person. It is perhaps due to the objection of the English law to recognize such contracts that joint and several rights have been regarded as
15In Louisiana, the term "several contract" is used to denote a contract which imposes different obligations upon the several promisors; but the Louisiana terminology is borrowed from the Civil Law. See La. Code, Sec.Sec. 2077 et seq- In Krbel v. Krbel, 84 Neb. 160,120 N. W. 936, also, the contract before the court is called "joint and several," though the several Labilities were for different performances than the joint liability, and the correctness of the decision depends upon that circumstance. See infra, Sec. 334.
16 5 Coke, 18 b.
17 Eccleston v. Clipsham, 1 Wms. Saund. 153; Withers v. Bircham, 3 B. & C. 254; Brodburne v. Botfield, 14 M. & W. 559; Eveleth v. Sawyer, 96 Me. 227, 52 Atl. 639. But see Collyer v. Cook, 28 Ind. App. 272, 62 N. E.
656, where the court held without adverting to the rule of Slingsby's case, that notes payable to "the order of A or B" gave to each a separate right of action as well as a joint right. See further as to such notes, Passut v. Heubner, 81 N. Y. Misc. 249, 142 N. Y. 8. 546; Uniform Neg. Inst. Law, Sec. 8 (5).
18 In Keightley v. Watson, 3 Exch. 716, 726, Rolfe, B., said: "If they [the parties] so word one covenant as to make it a joint and separate covenant, had it not been otherwise decided, I confess I should have seen nothing extraordinary in holding that if they choose so to contract as to impose upon themselves that burthen, and state it to be both joint and several, the court ought to so construe it." impossible. It is to be noticed, however, that if the performance of the promise (as a promise to go to Rome) does not require any cooperation of other persons as by receiving the performance, there is no logical difficulty in promising several persons jointly, and also each of them severally that the specific thing shall be done.19