3 In Powis v. Smith, 5 B. & Al. 851, Abbott, C. J., says, " It is clear that if there be a joint lease by two tenants in common, at an entire rent, the two may join in an action to recover the same, but if there be a separate reservation to each, then there must be separate actions." See also Foley v. Addenbrooke, 4 Q. B. 208; Midgley v. Lovelace, Carth. 289.
4 Wilkinson v. Hall, 1 Bing. N. C. 718; Cutting v. Derby, 2 W. Black. 1077.
1 De Ridder v. Schermerhorn, 10 Barb. 640; Hall v. Farmer, 2 Comst. 553.
2 In Van Alstyne v. Van Slyck, 10 Barb. 387, it is said by the court: "But it is objected that there was but one seal, and that, therefore, both defendants cannot be jointly liable in covenant. The oyer shows but one seal, and that is opposite the signature of Van Slyck, the first signer. Where there are several persons executing a deed, it is not necessary to affix a separate seal for each, provided it appear that the seal affixed was intended to be adopted as the seal of all. (Perkins, 51, § 134; Sir Wm. Jones, 268; 1 Dall. 63; 3 Monroe, 376; 2 Dev. 493.) It was so held, where a deed was executed by an attorney for several persons. (Townsend v. Hubbard. 4 Hill, 351.) And where one of two partners executed a bond to which he subscribed the name of the firm, and affixed one seal, the other partner having previously read and approved the bond, and consenting that his copartner should execute it for both, and being in the store at the time of its execution, though it was not actually signed and sealed in his immediate presence; this was held a good execution of the bond, so as to make it the deed of both. (Mackay v. Bloodgood, 9 Johns. 285.) In Ball v. Dunsterville (4 T. R. 313), A. executed a deed for himself and his partner, by the authority of his partner, and in his presence; it was held a good execution of both, though only sealed once. In Flood v. Yandes (1 Blackf. 102), it was held that two persons may make use of one seal in the execution of a bond, and it will be the deed of both. The case of Stabler v. Cowman (7 Gill & Johns. 284) is, perhaps, more like that under consideration. It is there said, the same contract may be the specialty of one, and the parol agreement of another; and such is this case, if the seal affixed is that of Van Slyck alone, and not of Garner. In Stabler v. Cowman, it is also held, that where there is but one seal to a contract, it is presumed to be the seal of the party whose signature is prefixed to it; but upon proof of its being made by the authority of the other parties to the contract, it will be held to be their seals respectively." all personal liability, at all events in a court of equity.1 But the same rule does not apply to a joint receipt by co-executors.2 § 59. Where a promissory note or other unsealed instrument is signed by one person, and it appears on the face of the instrument itself, that he signs as agent for other persons, naming them, he will not render himself severally liable thereon. Thus, where a partner signed a promissory note with his own name, "for A. B. C." his partners, it was held that the firm was liable solely, and the mere fact that the note commenced with the words "I promise to pay" would not render the instrument several.3 But if a note commencing, "I promise to pay," be signed by two persons, and nothing appear to indicate partnership or other' joint liability, the note would be joint and several.4 But where the instrument is sealed and signed by one person with his own name and seal, he would be severally liable, although it should appear that he was acting as agent or attorney.1
1 See 2 Story, Eq. Jur. § 1280, 1281; Fellows v. Mitchell, 1 P. Wms. 83, and Cox's note.
2 Sadler v. Hobbs, 2 Bro. Ch. 114.
3 The opposite doctrine was laid down in Hall v. Smith, 1 B. & C. 409. on the authority of the old cases of March v. Ward, Peake, 177, and Clerk v. Blackstock, Holt, N. P. 474; but this case has been expressly overruled by the Court of Exchequer in the case of Ex parte Buckley, 14 M. & W. 473. Baron Parke, in the judgment in that case says, " This is prima facie a promise by one partner for himself and the other three partners, and it amounts to one promise of the four persons constituting the firm; and if Mitchell had authority, the firm is bound. I really must say that I think Hall v. Smith cannot be supported. The partner, in making the promise, is only an agent for the firm. Then does it bind him personally, or does it bind the firm? No doubt the instrument was intended to bind the firm; and as he had authority as a partner to do it, it had that effect. I think we must certify our opinion to the Lord Chancellor, that there was no separate right of action against Mitchell upon any of these notes." See also Story on Partnership, 144, in which Mr. Justice Story says that the doctrine in the case of Hall v. Smith " goes to the very verge of the law, and perhaps may be thought to deserve further consideration." Van Alstyne v. Van Slyck, 10 Barb. 387; Ball v. Dunsterville, 4 T. R. 313.
§ 60. Where there is no written contract, but the agreement is one of implication from the subject-matter and the circumstances of the case, the nature of the consideration affords the true criterion by which to determine whether the contract is joint or several. If the consideration moving from several persons be entire and single, the contract is joint, and all must sue. If there be distinct considerations moving from each of the persons individually, the contract is several.2 Thus, if several persons be employed at the same time to do a certain work together for a whole sum, the contract is joint; but if the parties be retained to do separate parts of the work, or if there be a separate agreement with each, the contract would be several.3 So, also, where, in a joint action brought by two persons as plaintiffs, it appeared that several cattle had been distrained, some belonging to one and some to the other, and that the defendant, in consideration of £10 paid to him by the plaintiffs, had promised to get the cattle restored to them, it was held that, as the consideration was joint, the action was properly brought jointly.4