Sec 830

The liabilities of partners are joint and several, at least in equity, although by the strict rule of the common law " the legal remedy exists only against the survivors."2 As the rule is stated by James, L.

Otherwise if debt is payable individually.

Debtors may make themselves severally liable to each of several creditors.

Liability of partners is joint and several.

1 March V. Ward, Peake, 130; Van Alstyne V. Van Slyck, 10 Barb. 387; Dill V. White, 52 Wis. 459; and see Hemmenway V. Stone, 7 Mass. 58.

2 Slater V. Magraw, 12 G. 4 J. 265.

3 Ibid.; Townsend V. Hubbard, 4 Hill, 351.

4 See Vangerow, iii. sec 593; Deman-geat, des obligations solidaire, Unter-holzner, 1, sec 86-91.

5 Puchta, sec 233; L. 14, pr. D. de nox act. (9, 4) Windscheid, sec 298.

6 Ibid.

7 Leake, 2d ed. 454; Dering V. Win-chelsea, 1 Wh. & T. L. C. 4th Am. ed. 120; Campbell V. Rothwell, 47 L. J. C. P. 144.

8 Holborn Union V. St. Leonard, L. R. 2 Q. B. D. 145. That a promise to several parties must be either joint or several, see supra, sec 817, 825.

9 Leake, 2d ed. 451; Ch. on Pl. 16th Am. ed. (1879) 48; Devaynes V. Noble, 1 Mer. 564; Beresford V. Browning, L.

J., "The liability of partners for property acquired by them as partners is in equity joint and several. That is the usual form of expressing the rule, but it would be more accurate to say that, so far as regards partners, where there is in equity no survivorship of property, there is in equity no survivorship of liability."1 Nor need dormant partners, any more than undisclosed principals, be sued.2

Sec 831

When there are two or more joint debtors, the release under seal of one releases all.3 Nor in such case is it any reply, unless fresh consideration should be proved, that the surviving debtor agreed to remain liable for the debt.4 Where, however, the intention is to reconstruct the agreement by way of novation, then, if the discharge of one party be at the request of the other, and was the consideration of the new agreement, the new agreement will stand.5 And when it is expressly provided in an agreement that a release given to one of two joint obligors is not to prejudice the right of the plaintiff to sue both obligors jointly - or when a release is given to one of two partners with a proviso that this is not to operate to discharge the other partner, but that notwithstanding the release the partners may be sued jointly - in such cases the debt is not extinguished.6 - Whether such a release to be effective must be under seal has been much discussed. At common law it must be under seal.1 In Pennsylvania, where equity is administered under common law forms, the seal is not necessary;2 and this is now the case in all jurisdictions where a release on a sufficient consideration is proved;3 or where the release amounts to an accord and satisfaction.4 - The reason for the rule in general is that, unless it were maintained, "the co-debtor, after paying the debt, might sue him who had been released for contribution; and so in effect he would not be released at all;"5 and this has been applied to all releases on joint contracts.6 - But a covenant not to sue one joint debtor does not release the other;7 nor is an informal discharge of one joint debtor a discharge of the others.8 In England, however, an accord and satisfaction with one joint debtor, though not under seal, discharges the others;9 though it is otherwise, as we have seen, with a mere covenant not to sue.10 - Although in law the release by a creditor of one surety releases the others from their liability,11 yet in equity it has been held that a discharge of a particular surety after a composition with such surety does not preclude the creditor from recovering from the other surety his share of the original obligation.12

Release of one joint debtor releases all.

R. 1 C. D. 30. See Robertson V. Smith, 18 Johns. 459; Smith V. Black, 9 S. & R. 142.

1 Beresford V. Browning, L. R. 1 C. D. 30; adopted Leake, 2d ed. 451.

2 Robinson V. Wilkinson, 3 Price, 538; Hudson V. Robinson, 4 M. & S. 475; Dickinson V. Valpy, 10 B. & C. 128; New York Dry Dock Co. V. Tread-well, 19 Wend. 525.

3 Brooks V. Stuart, 9 Ad. & El. 854; Cheetham V. Ward, 1 Bos. & P. 633; Dean V. Newhall, 8 T. R. 168; Lunt V. Stevens, 24 Me. 534; Shaw V. Pratt, 22 Pick. 308; Milliken V. Brown, 1 Rawle, 391. As to accord and satisfaction with one debtor, see infra,.