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.
A joint and several promise amounts in legal effect to a joint promise by all and to a several promise by each.1 Accordingly, the party for whose benefit such bond is given may bring an action thereon against one of the obligors, although he is himself one of the other obligors.2 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.3 Even if the joint and several promisors are principal and sureties, the promisee may, at his election, bring an action against any one of such promisors.4 The promisee's election of either of these remedies bars the other.5 Bringing suit is held in some jurisdictions to be such election,6 while in others only satisfaction is a final election.7 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.8 He can not, however, join in one action any number less than all.9 This objection must, however, be interposed before going to trial on the merits or it will be waived.10 If, however, in such an action judgment is rendered against one promisor by confession, the action may be continued against the others.11 A default judgment against one of two or more joint and several promisors is not a bar to an action against another joint promisor.12 A statute which provides that an action may be brought against one or more of the parties who are severally liable upon the same contract, has been held to apply to joint and several contracts and to authorize the promisee to bring an action against more than one and less than all of such parties.13 Under some statutes a judgment may be entered against some joint and several promisors and the case may be continued as against the remaining joint and several promisors.14
5 Loustalot v. Calkins, 120 Cal. 688, 53 Pac. 258.
6 First National Bank v. Lowther-Kaufman Oil & C. Co., 66 W. Va. 505, 28 L. R. A. (N.S.) 511, 66 S. E. 713.
7Jemison v. Governor, 47 Ala. 390 (except as far as the insolvency of some of the remaining parties may affect contribution).
See also, Frederick v. Moore, 52 Ky. (13 B. Mon.) 470.
8Hempy v. Ransom, 33 O. S. 312.
9 Drew v. Bank of Monroe, 126 La. 673, 51 So. 683.
10McCready v. Freedly, 3 Rawle (Pa.) 251.
11 Petri v. Manny, 09 Wash. 601, 1 A. L. R. 1595, 170 Pac. 127.
12 Petri v. Manny, 99 Wash. 601, 1 A. L. R. 1595, 170 Pac. 127.
13 Petri v. Manny, 99 Wash. 601; 1 A. L. R. 1595, 170 Pac. 127.
14 Petri v. Manny, 99 Wash. 601, 1 A. L. R. 1595, 170 Pac. 127.
15 Petri v. Manny, 99 Wash. 601, 1 A. L. R. 1595,170 Pac. 127.
1 Municipal Court of Providence v. Whaley, 25 R. I. 289, 105 Am. St. Rep. 890, 63 L. R. A. 235, 55 Atl. 750.
2 Municipal Court of Providence v. Whaley, 25 R. I. 289, 105 Am. St. Rep. 890, 63 L. R. A. 235, 55 Atl. 750.
3 United States. Minor v. Bank, 26 U. S. (1 Pet.) 46, 7 L. ed. 47.
California. Coburn ,v. Goodall, 72 Cal. 498, 1 Am. St. Rep. 75, 14 Pac. 190.
Connecticut. Olmstead v. Bailey, 35 Conn. 584.
Massachusetts. Peckham v. North Parish, 33 Mass. (16 Pick.) 274.
North Dakota. Clements v. Miller, 13 N. D. 176, 100 N. W. 239.
Ohio. Clinton Bank v. Hart, 5 O. S. 33.
Oregon. Anderson v. Stayton State Bank, 82 Or. 357, 159 Pac. 1033; Noble v. Beeman-Spaulding-Woodward Co., 65 Or. 93, 46 L. R. A. (N.S.) 162, 131 Pac. 1007.
Washington. Pacific Bridge Co. v. U. S. Fidelity and Guaranty Co., 33 Wash. 47, 73 Pac. 772.
4 News-Times Publishing Co. v. Doo-little, 51 Colo. 386, 118 Pac. 974; Miller v. State (Okla.), 152 Pac. 409.
5 Ex parte Rowlandson, 3 P. Wma. 405; Ex parte Brown, 1 Ves. & B. 60; United States v. Price, 50 U. S. (9
How.) 83, 13 L. ed. 56; Weil v. Guerin, 42 O. S. 299.
6 Weil v. Guerin, 42 O. S. 299.
7Prosser v. Evans [l895], 1 Q. B. 108; People v. Harrison, 82 Ill. 84.
8 Illinois. People v. Harrison, 82 Ill. 84.
Georgia. Booth v. Huff, 116 Ga. 8, 94 Am. St. Rep. 98, 42 S. E. 381.
Massachusetts. Byers v. Franklin Coal Co., 106 Mass. 131.
Ohio. Clinton Bank v. Hart, 5 O. S. 33; Avery v. Vansickle, 35 O. S. 370.
Oregon. Noble v. Beeman-Spaulding-Woodward Co., 65 Or. 93, 46 L. R. A. (N.S.) 162, 131 Pac. 1007.
Washington. Petri v. Manny, 99 Wash. 601, 1 A. L. R. 1595, 170 Pac. 127.
Wisconsin. Davis v. Schmidt, 126 Wis. 461, 110 Am. St. Rep. 938, 106 N. W. 119.
9Cummings v. People, 50 Ill 132; Fay v. Jenks, 78 Mich. 312, 44 N. W. 380.
Contra, by statute, Council Bluffs Savings Bank v. Griswold, 50 Neb. 753, 70 N. W. 376.
A discharge of one joint and several promisor under seal has been held to enure to the benefit of all,15 at least unless the right to proceed against the remaining promisors is expressly reserved in the release. It is easy to see why, under technical common-law notions, such a release should discharge the remaining promisors from their joint liability.16 It is not easy to see why such a release should have any effect upon their several liability. Whether they are to be held jointly or severally depends on the wish of the promisee, and no good reason appears for extending the technical rule that a release of one joint promisor releases all to the case of joint and several promisors.
By statute in Louisiana the right to proceed against the remaining promisors may be reserved expressly.17