§ 56. But if the agreement be to pay to each covenantee a specific sum, or to perform distinct and separate duties to each of the obligees, the contract wonld be treated as several.7
1 East, 497; Sweigart v. Berk, 8 S. & R. 308; Dob v. Halsey, 16 Johns. 34; Sims v. Harris, 8 B. Monroe, 55; Tapscott v. Williams, 10 Ohio, 442; Foley v. Addenbrooke, 4 Q. B. 207, 208. See also Pugh v. Stringfield, 3 C. B. (n. s.) 2 (1857); Calvert v. Bradley, 16 How. 580; Bartlett v. Holbrook, 1 Gray, 114; Jewett v. Cunard, 3 Woodb. & Min. 277.
1 Duvall v. Craig, 2 Wheat. 45.
2 Gresty v. Gibson, Law R. 1 Exch. 112 (1866); Lay v. Mottram, 19 C. B. (n. s.) 479.
3 Lane v. Drinkwater, 1 C. M. & R. 613; Winterstoke Hundred's Case, Dyer, 370 a, p. 59; May v. May, 1 C. & P. 44; English v. Blundell, 8 ib. 332; Osborne v. Harper, 5 East, 229.
4 Lane v. Drinkwater, 1 C. M. & R. 599; Byrne v. Fitzhugh, 1 ib. 613; Osborne v. Harper, 5 East, 229; Foley v. Addenbrooke, 4 Q. B. 208.
5 Lane v. Drinkwater, 1 C. M. & R. 599. But see Shaw v. Sherwood, Cro. Eliz. 729.
6 May v. May, 1 C. & P. 44; Ivans v. Draper, 1 Roll. Abr. 31, pi. 9; Saund. 116, n. a.
7 Brand v. Boulcott, 3 Bos. & Pul. 235; Palmer v. Sparshott, 4 Scott, N. R. 743; 4 Man. & Grang. 137; Owston v. Ogle, 13 East, 538; Hall v. Leigh, 8 Craneh, 50; Shaw v. Sherwood, Cro. Eliz. 729; Withers v. Bir-cham, 3 B. & C. 254.
Thus, where the defendant promised one Thomas that, in consideration of the surrender of a copyhold, he would pay to his (Thomas's) two daughters £20 apiece, it was held, that the promise was several, and as the parties had distinct interests, every one of them could bring the action.1 . So, also, where the defendant was master of a vessel, and covenanted with the plaintiff and others, part-owners, and their several and respective executors, administrators, and assigns, to pay certain moneys to them and to every of their several and respective executors, etc, and in such parts and proportions as were set against their several and respective names, it was held, that the covenant was several, and each covenantee should have brought a separate action.2 So, a bond by which several obligors bind "themselves and each of them, their heirs, executors, and administrators, and every of them," is a joint and several bond, although the words "jointly and severally" are not used.3 But a contract by two persons with a boat-builder to pay for a boat to be built for them for a certain sum, " each his one-half," is several, and not joint.4 "The contract," said the court, " was to build the boat for them, and when finished it was to belong to them, as tenants in common. But their promise to pay for it is several, and not joint. It is true that they express themselves in the plural number, and use the expression ' we will pay,' in reference to the several instalments that were to become payable at various stages, and upon the final completion, of the entire contract. But the terms of this promise must be considered as qualified by the stipulation that each of the defendants is to pay one-half of the entire price, in instalments. Taking the whole instrument together, it must be interpreted as providing that each defendant shall pay one-half of each instalment, as it becomes due, and no more. In a recent case in the Court of Exchequer,5 against two defendants jointly, upon a written promise substantially in these terms: 'In consideration that you will sell to P.' certain property,
1 Thomas v.------, Styles, 461.
2 Servante v. James, 10 B. & C. 410.
3 Olmstead v. Bailey, 35 Conn. 584 (1869). And see Carter v. Carter, 2 Day, 442. 4 Costigan v. Lunt, 104 Mass. 217 (1870).
5 Fell v. Goslin, 7 Exch. 185.
'and will take F.'s acceptance for £400, and interest, payable at six months after the date, we undertake and guarantee that the said sum of £400 and interest shall be duly paid to you when the said acceptance arrives at maturity, in the proportion of £200 each,' it was held that the defendants were severally liable in £200 each, but were not under any joint liability. That was a stronger case for the plaintiff than the case at bar." The question in all of these cases, however, depends upon the intention of the parties, and this is to be gathered from an examination of all the circumstances of the case. If it clearly appear that a several liability was intended, the contract will be construed so as to agree with such intention, and not strictly according to technical rules.1
§ 57. The same rule would apply to cases of tenants in common. If, therefore, they should make a lease reserving one entire rent to themselves, they could bring a joint action therefor, notwithstanding the rent were reserved " according to their several and respective rights and interests." 2 But if the contract be for separate rents, there must be separate actions.3 So, if there be no joint demise, as if a moiety of the premises be held under one tenant, and a moiety under the other, there must be several actions for the rent.4
§ 58. In contracts of guaranty or suretyship, co-sureties may be either jointly or severally liable according to the terms of their contract, but the surety is not jointly liable with the principal, his undertaking being collateral and secondary.1 In respect to co-sureties, it is not necessary, in order to create a joint liability, that each should have a separate seal, provided it appear that the seal affixed was intended to be adopted as the seal of all.2 Co-trustees and co-executors are generally liable only severally and not jointly for the acts of each other, and, accordingly, if a trustee sign a receipt jointly with his co-trustee, he may, by showing that he did not receive the money, avoid
1 Peckham v. North Parish in Haverhill, 16 Pick. 274. See also Owston v. Ogle, 13 East, 538.
2 Lift. § 316; 2 Black. Coram, ch. 13, IV.; Simpson v. Clayton, 4 Bing. N. C. 781; Tindal, C. J. says, in this case, "No case appears to have laid it down that tenants in common must join in an action of covenant; the utmost that has been established seems to be that tenants in common may join in those actions of covenant which are merely personal, and several in damages only, as on the covenant to repair. 1 Lev. 109; Raym. 80." See also Wallace v. McLaren, 1 Man. & Ryl. 516.