§ 309. Same subject Judgment against one partner releases others. The obligation of firm contracts being joint, if the creditor proceeds to judgment against one or part of them alone, where no statute has changed the rule, he releases the others.10 In a leading case 11 in the Supreme Court of the United States, where a creditor who had taken judgment against one partner upon a firm note in one state sought to recover against another partner in another state, the court, through Mr. Justice Field, said: "It is true that each copartner is bound for the entire amount due on copartnership contracts; and that this obligation is so far several that if he is sued alone, and does not plead the non-joinder of his copartners, a recovery may be had against him for the whole amount due upon the contract, and a joint judgment against the copartners may be enforced against the property of each. But this is a different thing from the liability which arises from a joint and several contract. There the contract contains distinct engagements-that of each contractor individually, and that of all jointly, and different remedies may be pursued upon each. The contractors may be sued separately on their several engagements or together on their joint undertaking. But in copartnerships there is no such several liability of the copartners. The copartnerships are formed for joint purposes. The members undertake joint enterprises, they assume joint risks, and they incur in all cases joint liabilities. In all copartnership transactions this common risk and liability exist. Therefore it is that in suits upon these transactions all the copartners must be brought in, except where there is some ground of personal release from liability, as infancy, or a discharge in bankruptcy; and if not brought in, the omission may be pleaded in abatement. The plea in abatement avers that the alleged promises, upon which the action is brought,

10 See Kendall V. Hamilton (1879), L. R. 4 App. Cas. 504, Gilm. Cas. 293; McMaster v. City Nat. Bank (1909), 23 Okla. 550, 101 Pac. 1103, 138 Am. St. R. 831; Ryckman v. Manerud (1913), 68 Oreg. 350, 136 Pac. 826, Ann. Cas. 1915 C 522; Anderson v. Stayton Bank (1916),

82 Oreg. 357, 159 Pac. 1033; Blythe v. Cordingly (1905), 20 Colo. App. 508, 80 Pac. 495; Thompson v. Emmert (1854), 15 Ill. 415.

11 Mason v. Eldred (1867), 73 U. S. (6 Wall.) 231, 18 L. ed. 783, Mechem's Cas. 433, Burd. Cas. 388, Gilm. Cas. 281.

were made jointly with another and not with the defendant alone-a plea which would be without meaning if the copartnership contract was the several contract of each copartner."

§ 310. Same subject.-"The general doctrine maintained in England and the United States," continued the same learned judge, "may be briefly stated. A judgment against one, upon a joint contract of several persons, bars an action against the others, though the latter were dormant partners of the defendant in the original action and the fact was unknown to the plaintiff when that action was commenced. When the contract is joint, and not joint and several, the entire cause of action is merged in the judgment. The joint liability of the parties not sued with those against whom the judgment is recovered being extinguished, their entire liability is gone. They cannot be sued separately, for they have incurred no several obligation; they cannot be sued jointly with the others, because judgment has been already recovered against the latter, who would otherwise be subjected to two suits for the same cause.'

This rule, however, may be changed by a statute altering the effect of the judgment as to the defendants who were not personally served with process,12 and has been so changed in several States.

§ 311. Same subject-Release of one releases all-Another consequence of the joint character of partnership obligations is the rule that a release of one of the partners releases all.13

12 Mason v. Eldred, supra. See, also, Brooks v. McIntyre (1856), 4 Mich. 316; Sugg V. Thornton (1889), 132 U. S. 524, 10 Sup. Ct. 163, 33 L. ed. 447; Harker v. Brink (1854), 24 N. J. L. 333; Patten v. Cunningham (1885), 63 Tex. 666; Hall v. Lanning (1875), 91 U. S. 160, 23 L. ed. 271; Wood v. Watkinson (1846), 17 Conn. 500, 44 Am. Dec. 562, and note; Nathanson v. Spitz (1895), 19 R. I. 70, 31 Atl. 690, Burd. Cas. 393.

13 Lindley on Partnership (7th ed.), 267; Harbeck v. Pupin (1895), 145 N. Y. 70, 39 N. E. 722; Merritt v. Bucknam (1897), 90 Me. 146, 37 Atl. 885; Clark V. Mallory (1900), 185 Ill. 227, 56 N. E. 1099; note, 138 Am. St. R. 834. Thus a receipt under seal, given to one of two or more joint debtors, "in full satisfaction for his liability" upon the obligation, imports a technical release, and therefore releases all. Hale v. Spaulding (1888), 145 Mass.

This rule applies, however, only to the case of a technical release under seal, and does not extend to a mere covenant not to sue one partner, or to any other instrument reserving the creditor's rights against the other partners, which, though in the form of a release, may be treated as a covenant not to sue rather than as an absolute release.14

In the case of the release, however, there is one material distinction as compared with the taking of a judgment. If the obligation be joint, the release of one releases all and it is immaterial that the obligation was also several. In other words, the rule applies whether the obligation be simply joint or joint and several.15

Statutes in a number of States now permit a creditor to settle with one of several joint debtors without losing his claim against the others for their proportion.16

§ 312. Partnership obligations arising from tort are joint and several. The liability, however, of partners for torts committed by one partner or by the servant of the firm is joint and several, and the action may be brought against one or all

482, 14 N. E. 534, 1 Am. St. R. 475, Mechem's Cas. 440.

Not so, where one released was an infant who claimed exemption on that ground. Kirby v. Cannon (1857), 9 Ind. 371; Young v. Currier (1885), 63 N. H. 419.

14 Lindley, ubi supra; Hale v. Spaulding, supra; Benjamin v. McConnell (1847), 4 Gilm. (9 Ill.) 536, 46 Am. Dec. 474; Berry v. Gillis (1845), 17 N. H. 9, 43 Am. Dec. 584; Goodnow v. Smith (1836), 18 Pick. (Mass.) 414, 29 Am. Dec. 600, Mechem's Cas. 441; Haney V. Creamery Co. (1899), 108 Iowa 313, 79 N. W. 79.

While a covenant not to sue, in the case of a single debtor, is frequently, to avoid circuity of action,

or an intermediate number.17 The Uniform Partnership Act is to the same effect.18

"To this general rule," says Mr. Justice Lindley,19 "an exception occurs where an action ex delicto is brought against several persons in respect of their ownership in land, for then they are liable jointly, and not jointly and severally." But this exception has, as to partners, been modified by the English Partnership Act. A release of one of several joint wrong doers ordinarily releases all,20

II. OF THE EXTENT OF PARTNERSHIP LIABILITY.

§ 313. Each partner liable in solido for partnership obligations. Although the obligation of partnership liabilities may be in nature joint, it does not follow that the liability when once judicially established must, by the creditor, be jointly or ratably enforced against the partners. The liability may be joint, but it is also entire. Each partner, therefore, is personally and individually liable for the entire amount of all such obligations, whether arising from contract or tort, as are binding upon the firm. His liability, in ordinary partnerships, is not limited by the amount of his contribution to the partnership capital, but extends to his entire property; and it makes no difference what may be his share or interest in the partnership business, or whether he is an active or a secret partner, or whether the other partners are pecuniarily responsible or not; he is liable in solido for the partnership obligations.21

17 See White v. Smith (1860), 12 Rich. (S. C.) L. 595, Gilm. Cas. 306; Howe v. Shaw (1868), 56 Me. 291; Roberts v. Johnson (1874), 58 N. Y. 613.

18 Sec. 15 quoted ante, § 308.

19 Lindley on Partnership (7th ed.), 320, citing 1 Wms. Saunds. 291, f and g.

20 See Abb v. Northern Pac. Ry. Co. (1902), 28 Wash. 428, 68 Pac. 954, 92 Am. St. R. 864, and note, 58 L. R. A. 293; Louisville, etc., Co.

v. Barnes (1904), 117 Ky. 860, 79 S. W. 261, 111 Am. St. R. 273, and note, 25 Ky. Law. R. 2036, 64 L. R. A. 574.

21 See Hallowell V. Blackstone Nat. Bank (1891), 154 Mass. 359, 28 N. E. 281, 13 L. R. A. 315, Burd. Cas. 288, Gilm. Cas. 309, where under "claims against him," it was held that firm acceptances were to be included.

In tort, see Loomis v. Barker (1873), 69 Ill. 360, Gilm. Cas. 308.

§ 314. Individual property of partner may be taken to satisfy partnership debt.-Moreover, if judgment be obtained against the partners upon an obligation existing against the partnership, the execution, though in form against all, may, unless otherwise provided by statute, be levied directly upon the individual property of any one or more of the partners without regarding or exhausting the firm property. The creditor, further, is under no obligation to levy against all the partners ratably, but may select any one or more and levy execution against him or them until the judgment is satisfied, leaving all questions of contribution to be settled afterwards between the partners themselves.22 In case any partner is not served with process, no personal judgment can ordinarily be rendered against him, nor can his individual property usually be taken, though the firm property may be seized.23 Where, as in some States, an action may be brought against the firm as an entity, and is so brought, a similar result would usually follow.24

If conflict arises between the firm creditors and the individual creditors of the partner, as to the application of the individual property of a partner, special rules apply which will be hereafter considered when the general subject of the application of assets to the claims of creditors is discussed.25

22 See Stevens v. Perry (1873), 113 Mass. 380, Mechem Cas. 961, Ames' Cas. 330, Burd. Cas. 377; Randolph v. Daly (1863), 16 N. J. Eq. 313; Clayton v. May (1881), 68 Ga. 27; Stout v. Baker (1884), 32 Kan. 113, 4 Pac. 141; Haralson v. Campbell (1879), 63 Ala. 278, Mechem's Cas. 430. But in Jaffray v. Jennings (1894), 101 Mich. 515, 60 N. W. 52, 25 L. R. A. 645, Mechem's Cas. 416, Burd. Cas. 378, Gilm. Cas. 503, it is held that the individual property of an innocent partner is not liable to attachment for a firm debt fraudulently contracted by another member of the firm. See also, Curtis v. Hollings

head (1834), 14 N. J. L. 402, Burd. Cas. 285.

23 See Sugg v. Thornton (1889), 132 U. S. 524, 10 Sup. Ct. 163, 33 L. ed. 447; Hall v. Lanning (1875), 91 U. S. 160, 23 L. ed. 271; Brooks v. McIntyre (1856), 4 Mich. 316; Yerkes v. McFadden (1894), 141 N. Y. 136, 36 N. E. 7, 344, Burd. Cas. 382.

See, also, People's Nat. Bank v. Hall (1904), 76 Vt. 280, 56 Atl. 1012.

24 So held, for example, in Iowa. See Lansing v. Bever Land Co. (1913), 158 Iowa 693, 138 N. W. 833 citing other Iowa case. 25 See post, Ch. XX.