JOINT AND SEVERAL. A liability is said to be joint and several when the credi tor may sue one or more of the parties to such liability separately, or all of them to gether 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. 363. As a gen eral rule all the contracts of partners are said to be joint and several. See PARTNER SHIP.
As to joint and several debtors„ Lord Mansfield said in Rice v. Shute, 5 Burr. 2611, that "all contracts with partners were joint and several, and every partner was liable to pay the whole." But it was remarked by Spencer, C. J., that "it would be straining Lord Mansfield's opinion unreasonably to say, that he meant technically that all con tracts with partners were joint and several, for, then, the non-joinder of any of the part ners never could be pleaded in abatement, which all the court expressly decided. In equity they are joint and several; and so they were as regarded that suit, the defend ant having neglected to avail himself of the objection iu a legal manner. Surely it can not be said that in a legal sense, when there are a plurality of debtors, that their con tract is joint and several, when they have engaged jointly to pay the debt. Each debt or is 'bound for the whole, until the debt is paid; but as regards the remedy to coerce payment, there is a material and settled dis tinction. 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 bank rupt or insolvent law, or is not liable on the ground of infancy." Robertson v. Smith,
18 Johns. (N. Y.) 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. v. Ide, 114 U. S. 52, 5 Sup. Ct. 735, 29 L. Ed. 63. A separate defence may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way ; Alabama G. 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 con spiracy to win the money of a third person by gambling or betting, each member of the conspiracy is jointly and severally liable to the person losing the money, under statutes allowing the recovery of money lost by gambling ; Lear v. McMillen, 17 Ohio St. 464; McGrew v. Produce Exchange, 85 Tenn.. 572, 4 S. W. 38, 4 Am. St. Rep. 771; Preston v. Hutchinson, 29 Vt. 144; although a part nership cannot, strictly speaking, exist for the conduct of an illegal business ; Berns v., Shaw, 65 W. Va. 667, 64 S. E. 930, 23 L. It. A. (N. S.) 522, n. See JOINT TORTFEASORS.