Joint And Several

A liability is said to be Joint and several when the creditor may sue one or more of the parties to such liability separately, or all of them together at his option. Dicey, Parties 230. Where one is compelled to pay the whole debt or more than his proper share, he is entitled to contribution (q. v.). In case of the death of one his liability remains against his estate; Wms. Pers. Prop. 303. As a general rule all the contracts of partners are said to be joint and several. See Pabtnebsnir. As to joint and several debtors, Lord Mansfleld said in Itice v. Shute, 5 Burr. 2011, that “all contracts with partners were joint and several, and every partner was liable to pay the whole.” r.ut it was remarked by Spencer, C. J., that “it would be straining Lord Manstield’s opinion unreasonably to say, that he meant technically that all contracts with partners were joint and several, for, then, the non-joinder of any of the partners never could be pleaded in abatement, which all the court expressly decided. In diuity they are joint and several; and so they were as regarded that suit, the defendant having neglected to avail himself of the objection in a legal manner. Surely it cannot be said that in a legal sense, when there are a plurality of debtors, that their contract is joint and several, when they have engaged jointly to pay the debt. Each debtor is bound for the whole, until the debt is paid; but as regards the remedy to coerce payment, there is a material and settled distinction. If they have undertaken severally to pay, separate suits may be brought against each; but when their undertaking is joint, unless they waive the advantage, by not Interposing a plea. in abatement, they must be sued jointly, if in full life, and neither has been discharged by operation of a bankrupt or Insolvent law, or is not liable on the ground of Infancy.” Robertson v. Smith, 18 Johns. (N. T.) 459, 9 Am. Dec. 227. A defendant has no right to say that an action shall be several which a plaintiff elects to make joint; Louisville & N. R. Co. T. Ide, 114 U. S. 62, 6 Sup. Ct. 735, 29 L. Ed. 63. A separate defence may defeat a joint determination in his own way; Alabama Q. S. R. Co. V. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147. Where several parties enter into a conspiracy to win the money of a third person by gambling or betting, each member of the con.spiracy is jointly and severally liable to the person losing the money, under statutes allowing the recovery of money lost by gambling; Lear v. Mc Millen, 17 Ohio St 464; Mc Grew v. Produce Exchange, 85 Tenn. 572, 4 S. W. 38, 4 Am. St Rep. 771; Preston V. Hutchin.son, 29 Vt. 144; although a partnership cannot, strictly speaking, exist for the conduct of an illegal busiiie.ss; Berns v. Shaw, 65 W^ Va. 667, 64 S. E. 930, 23 L. R. A. (N. S.) 522, n. See Joint Tortfeasors.