This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If the promisors are jointly and severally liable upon their promise, the promisee may at his option sue all within the jurisdiction of the court jointly, or he may sue each of them separately.1 The promisee's election of either of these remedies bars the other.2 Bringing suit is held in some jurisdictions to be such election,3 while in others only satisfaction is a final election.4 A several judgment rendered against one joint and several promisor in an action in which another promisor is not served with process does not bar the right of action against such other promisor.5 He cannot, however, join in one action any number less than all.6 This objection must, however, be interposed before going to trial on the merits or it will be waived.7 If, however, in such an action judgment is rendered against one promisor by confession, the action may be continued against the others.8 A discharge of one joint and several promisor under seal inures to the benefit of all,9 unless the right to proceed against the remaining promisors is expressly reserved in the release.
1 Hunt v. Rousmaniere, 1 Pet. (U. S.) 1; Hale v. Spaulding, 145 Mass. 482; 1 Am. St. Rep. 475; 14 N. E. 534; Randahl v. Lindholm, 86 Minn. 16; 89 N. W. 1129; Scofield v. Clark, 48 Neb. 711; 67 N. W. 754; Rowley v. Stoddard, 7 Johns. (N. Y.) 207; Crawford v. Roberts, 8 Or. 324; Maslin v. Hiett, 37 W. Va. 15; 16 S. E. 437.
2 Merriman v. Barker, 121 Ind. 74; 22 N. E. 992: Whittemore v. Oil Co., 124 N. Y. 565: 21 Am. St. Rep. 708: 27 N. E. 244.
3 Haney. etc., Co. v. Creamery Co., 108 Ia. 313: 70 N. W. 79; Williamson v. McGinnis, 11 B. Mon. (Ky.)
74; 52 Am. Dee. 561; Shaw v. Pratt, 22 Pick. (Mass.) 305.
4 Valley Savings Bank v. Mercer, - Md. - ; 55 Atl. 435.
5 Hatzel v. Moore, 120 Fed. 1015.
6 Harrison v. Close, 2 Johns. (X. Y.) 448; 3 Am. Dec. 444.
1 Price v. Ry., 18 Ind. 137; Perry v. Turner, 55 Mo. 418.
2 McCready v. Freedly, 3 Rawle (Pa.) 251.
1 Minor v. Bank, 1 Pet. (U. S.) 46; Coburn v. Goodall, 72 Cal. 498; 1 Am. St. Rep. 75; 14 Pac. 190; Olmstead v. Bailey, 35 Conn. 584; Peckham v. North Parish, 16 Pick. (Mass.) 274.