A joint promise is one where two or more persons jointly agree to do a certain thing. Here the promise is that of all collectively, and not of any one individually.8 The result is that the person, to whom the promise was made must unite in his suit all of the promisors who are alive and of age.9 A failure to do this is fatal.10 In Cowley vs. Patch, it was held:11 "In order to maintain an action on a joint contract whether the action is brought against one or against both of the joint contractors, it is necessary to prove the liability of both; for if one only is or ever was liable, there is not a joint, but only a several liability, and a variance from the cause of action declared on. For example, if one joint contractor is sued alone, and does not plead in abatement the non-joinder of the other, and judgment is rendered against the one sued, it merges the cause of action against him, and (unless otherwise provided by statute) as the two are no longer jointly liable, prevents a subsequent recovery against the other joint contractor. Ward vs. Johnson, 13 Mass., 148. King vs. Hoare, 13 M. & W., 494. Mason vs. Eldred, 6 Wall., 231. So if, in such an action, the judgment is for the defendant, upon the ground that there is no joint liability, it is a bar to a subsequent action against the other contractor upon the joint contract. Phillips vs. Ward, 2 H. & C, 717.

3 Bishop on Contracts, 2nd Ed., Sec. 1219. 4 Durnford vs. Messiter, 5 Maule and S., 446.

5 Ames vs. Railway Co., 117 Mass.,

541; Haskins vs. Royster, 70 N. C, 601.

6 Walker vs. Cronin, 107 Mass., 555; Chipley vs. Atkinson, 23 Fla., 206; 1 So. Rep., 934.

7 Volume III, Subject 7.

8 Bower vs. Swodlen, 1 Atk., 294.

"The same rule must be applied to this case. It is true that, by reason of the death of one joint contractor, and the provision of the Gen. Sts., c. 97, Sec. 28, enabling an action to be maintained against his administrator as if the contract had been originally joint and several, the plaintiff might maintain one action against the survivor, and another against the administrator of the deceased. Curtis vs. Mansfield, 11 Cush., 152; New Haven & Northampton Co. vs. Hayden, 119 Mass., 361. But the severance is merely for the purposes of remedy, and the plaintiff must still, in either action, prove that the original liability was joint, and that, so far as concerns that question, both the survivor and the administrator of the deceased are liable." A joint and several promise is one which is both the joint promise of all the promisors, and also the individual promise of each separately. In such a contract the promisee may elect either to sue all the promisors, or one alone, but he cannot sue more than one and less than all.12

9 Cutts vs. Gordon, 13 Me., 474.

10 Tuttle vs. Cooper, 10 Pick, 281;

Wolcott vs. Canfield, 3 Conn., 194.

11 120 Mass., 137.