
    *Richard Stage v. Edson B. Olds, Thomas Huston, Joseph Olds, and Andrew Huston.
    Where several persons execute a bond, some as principals, and others as securities, at the same time, upon the same consideration, and for the same purpose, the instrument taking effect by a single delivery, they are, in law, joint obligors, and may be sued as such.
    It is immaterial in what form, or on what particular part of the paper the signatures are affixed.
    This is an action of Covenant, from the county of Pickaway.
    The plaintiff declared — for that, whereas, heretofore, to wit: on the sixth day of October, 1836, at the county aforesaid, the said Ed-son B. Olds, as principal, and the said Thomas Huston, Joseph Olds, and Andrew Huston, as sureties for said Edson B. Olds, by their covenant in writing, sealed with their seals, etc., agreed and bound themselves that the said Edson B. Olds, within five years from the first day of April, then next, (which period has now elapsed,) should pay to the Ohio Life Insurance and Trust Company the loan of fifteen hundred dollars, made by said company to the plaintiff, Richard Stage, and, if the payment thereof should be' sooner required by said company, that then he, the said Edson B. Olds, should pay the same, when required by said company, and pay all interest which should accrue thereon, from and after the first day of that month, (meaning the first day of October, 1836,) the said Richard Stage paying interest up to that time ; and that the said Edson B. Olds should save the said plaintiff, Richard Stage, harmless from all further claim on him by said company, on account of said loan: and then and there delivered their said covenant, sealed as aforesaid, to the said plaintiff; and the said plaintiff avers that, although,” etc.—
    The declaration proceeds to assign, for breaches, that the said loan has. not been paid by the defendants; nor has he been indemnified against it, but, on the contrary, the same remains ^unpaid, and [159 the plaintiff stands liable therefor, the said company still having a valid claim against him, by reason thereof, etc.
    The defendant, Edson B. Olds, craves oyer of the supposed covenant, and it is read in these words :—
    
      “ Circleville, October 6, 1836.
    “ For value reoeived, I hereby agree and bind myself to pay, within five years from the first day of April next, to the Ohio Life Insurance and Trust Company, the loan of $1500, made by said company to Richard Stage, and, if the payment thereof should be sooner required by said company, then to pay the same to said company, and to pay all interest which shall accrue thereon from and after the first day of this month, said Stage paying interest up to that time ; and I hereby agree to save said Stage harmless from all further claim on him by said company, on account of said loan.
    “ Witness my hand and seal the day above written.
    “ Edson B. Olds, [seal.]
    “We hereby bind ourselves, as security for said Olds, for the full and faithful performance of the above agreement.
    “ Witness our hands and seals, this 6th day of October, 1836.
    “ Thomas Huston, [seal.]
    “ Joseph Olds, [seal.]
    “Andrew Huston, [seal.]
    Which, being read, Edson B. Olds demurs.
    John L. Green, for defendant, in support of demurrer.
    We insist—
    First; This is not a joint covenant. It is several, as between the principal and his securities ; though, it is joint as between the securities. And, that a joint action against principal and sureties, can not be maintained upon it.
    The rule is, that several parties, contracting with the same party, 160] for one and the same act, shall be regarded as jointly *and not individually or separately liable, in the absence of any express words to show that a distinct as well as entire liability was intended to fasten on the promisors. 1 Chitty Pl. 47. Applying this rule, what is the undertalcing of these several parties ? It is not for one and the same act. The principal binds himself to pay, etc., and save harmless, etc. His undertaking is direct, unconditional. Not so with the securities. 'They covenant, not that they will, within five years, pay, etc., in any event, etc., but that their principal shall do so, and, if he does not, in that event, they will be responsible to the plaintiff. Their undertaking is collateral and conditional.
    The court must give effect to the contract, according to the intention of _ the parties. Here are express words and acts of the parties, showing their intention to create a distinct liability. They bind themselves, not as principals, to do the thing, but as securities for another, that he will do it. And this undertaking is, in an instrument, separate, from' that of the principal.
    If the covenant be joint, all the covenanters must be joined. If several, each must be sued separately. We ask, might not a separate action be maintained on this covenant, against the principal ? Surely. And we may test it thus : If the contract be joint, the release of one wcpld discharge the others. Now, surely, the release of these sureties would not discharge the principal. Could Edson B. Olds, in such a state of things, plead such release in bar, to an action against him, alone?. Such a result would follow, if this be a joint contract; for the liability, on such a contract, must be entire. On the other hand, a release of one several contractor, is not a discharge of the rest. Mathewson’s case, 5 Coke, 22, b.
    Again : Might not a joint action be maintained, on the covenant of the sureties, against them, not joining the principal? He has not joined with them, that they shall do any thing. Their liability depends on his not performing. Their liability is clearly joint, as between themselves. They might plead a release to their principal in bar, but on a different ground from that of joint contract.
    *When the question is of the joint or several liability of the [161 parties sued, the court must look to the words of the contract. They -can not make a contract for the parties. In Lee v. Nixon and Davison, 28 Com. Law, 67, the covenant was held to be several. It is true that there the word “ severally” is used. But that is not a clearer ease than this, to show the intention of the parties. Here, the principal, in one instrument, binds himself in the singular number : “ I agree, and bind myself,” etc. The securities, in a'separate instrument, bind themselves in the plural: “ We hereby bind ourselves,” etc. Surely, this is as strong evidence of intention to create a “ distinct” liability as can be conceived. The ease of Deusenberry v. O’Shiel, 2 Hall’s N. Y. 379, is like this. There, the undertaking of the surety, who was sued alone, was in a separate instrument, on the same piece of paper. True, the question of joint liability was not distinctly raised in that case ; but we must suppose the astute counsel in the case would have raised the point, had it been considered tenable ground.
    When parties have intended a several contract, but have used words which make it joint, courts of equity have interfered to give relief. Simpson v. Vaughn, 2 Atk. 31. This shows that at law, such language-is construed literally.
    The difference to these parties, whether this covenant be joint or several, may be material. By treating it as joint, the' plaintiff is enabled to sue all together. The sureties might desire the evidence of' their principal, to some material matter in discharge, and, if the covenant, as between him and them, was several, they might, by releasing him, avail themselves of his evidence. The securities might have a setoff against the plaintiff, of which they could not avail themselves in a joint action. In conclusion, on this point, we beg leave again to ask, as a test of this being a joint or several undertaking, would a release to these securities discharge the principal ? Mathewson’s case, above quoted, shows that it would not.
    Second : This is merely a covenant, to indemnify Stage against the payment of a debt already incurred, which was due at the time, and 162] payment'of which might be enforced at *any time. The court-will mark, it is not a covenant to save harmless from liability. The covenant shows this plainly. Olds covenants to pay, etc., within five years, etc., and, if payment should be 'sooner required by the company, then to pay, when required by the company. It is not, then, against a future, but a present subsisting indebtedness, which may be enforced, at any moment that the covenant is made. This plaintiff has no right of action, then, on this covenant, as broken, unfil he has paid fhe debt, or has, at least, been sued for it. The authorities are abundant to show that, where there is a condition or covenant to indemnify against; a debt, or duty, already incurred, and payable, the condition or covenant is not broken, unless the debt be paid, or duty performed, or suit-brought for the debt or duty. Where one is already liable to suit, it would seem absurd to suppose that the parties to a contract to indemnify, meant to guard against, or prevent such liability. Where, at the time of entering into the contract, there has been no liability incurred, there is reason to presume that it was the intention of the parties to-prevent such liability. Lewis v. Crockett, 3 Bibb. 196 ; 2 Com. Dig., 110.
    Por these reasons, we think the demurrer must be sustained.
    Ewing and Hunter, contra.
    
      The circumstance that the signature of Edson B. Olds, the principal, is affixed on the paper above the undertaking of the sureties, does not affect the case. It is all one covenant, made and delivered on the same day.
    The opposing counsel refers to the fact that the signatures and seals of the securities are affixed to their covenant, written below the seal of the principal. He merely notices it in passing, without laying any stress upon it! It is, in truth, entitled to no consideration whatever. It is the covenant itself, not the manner in which it is written or signed, that fixes its character. The covenant is ’the agreement of the parties ; the form and words in which it is conveyed is the *mere [163 shell — the bark that encloses it. If .the parties all covenanted for the performance of the same act, the covenant is joint, unless there be in it express words of severance. Chitty on Contracts, 81.
    The rule he extracted from 1 Chitty’s Pleading, 47, viz : “ That several parties, contracting with the same party for one and the same act, shall be regarded as jointly, and not individually or separately liable, in the absence of any express words to show that a distinct, as well as entire, liability was intended to fasten on the promisors,” furnishes the true test. And, in proceeding to show that this ease does notjiome within the rule just cited, he says ; “ What is the undertaking of these several parties?” and answers, “It is not for one and the same act.” This is the very point of the case. We answer to his inquiry, it is for one and the same act. The plaintiff, Stage, owes the Life and Trust Company $1500 ; Edson B. Olds covenants with Stage that he will pay this debt by a given day. That is the act to be done, according to his covenant. Now for what act did Joseph Olds, Thomas Huston, and Andrew Huston covenant ? One and the same, or another act?. Why the same, exactly. And they not only covenanted for the doing one and the same act, but that it should be done by the same person, viz ; Edson B. Olds. They covenant that he shall pay the same sum of money, to the same Life and Trust Company, on the same day on which he has covenanted to,, pay it. There is the most perfect and absolute identity throughout.
    But the learned counsel contends that the undertaking of Edson B. Olds is direct; that of the other parties collateral. His is unconditional ; their’s subject to a condition. This is exceedingly plausible, but a clear mistake as to the effect of the covenants. The covenants of all the parties are direct. It is the damages only for the breach that are conditional or collateral. They have all covenanted that Ed-son B. Olds shall pay the $1500 to the Life and Trust Company. He fails to pay it. What is the consequence of the breach as to him? Or, in other words, what can he be compelled to do because of the 164] *breach ? Not the direct act which he has covenanted to do ; not at all; the plaintiff can not compel him to that. But he must pay damages to the plaintiff equal to the injury sustained by the breach of his covenant. That is the judgment of the law upon him for his neglect. But when did the other parties break their covenant ? Exactly at the same time that Edson B. Olds broke his. What is the judgment of the law against them for the breach of their covenant ? Exactly the same as against Edson B. Olds. What, then, is to sever these covenants ? They were made by the same instrument, at the same time. They are for one and the same act. That which would be a performance as to one, would be so as to all. The same holds as to-the breaches ; and the consequences of a breach are precisely the same' to all.
    It is not necessary in order to make a covenant joint, that all the covenanters should agree to do, themselves, the act which is to be the performance : as if A, B, and C, bind themselves, by covenant, that C shall marry D, it is a joint covenant, though C only can perform it. So, in the ease of a common appeal bond, on which covenant lies as well as debt, the securities undertake for, and with, the principal, that he shall prosecute his appeal to effect. By the very nature of theumdertaking, even though the instrument contain no words fixing its character, the covenant is joint. Appropriate words may make it several, or joint and several.
    “ If several persons stipulate for the performance of an act, they are implicitly bound, jointly and not severally ; and there must be express words creating a several liability, in order to render them separately responsible.” Chitty on Contracts, 81.
    “ If two covenant, generally, for themselves, without any words of severance ; or, that they, or one of them, shall do such a thing, a joint charge is created.” Plat on Covenants, 117.
    In this covenant there are no such words. Edson B. Olds says, “ I hind myself.” The securities say, “ We bind ourselves,” No declaration of severance or unity, but the expressions are left to be explained by the character of the act to be done. If a note be drawn in 165] the singular, I promise, etc., *and two or more sign it, it is joint, or joint and several. The sum and substance of the matter is, that each signer, by the word I, referring to his signature, or, connected with it, undertakes, with all the others, whose names are signed to the same note, that he will pay, etc. In this case Edson B. Olds, who has signed above, covenants that he will pay. This objection is in the bark, and, as we suppose, not seriously, made.
    From the very nature of the covenant, we think that two several suits, one against the principal and one against his securities, could not be sustained. Having undertaken, by the same instrument, at the same time, for the performance of the same thing, the actual breach as to all being the same, the mode of assigning it the same against all, and there being no words of "severance, it seems to us that they must be sued jointly; and the more especially, as some of them are securities by the face of the paper, that they may avail themselves of the entry which the law allows for their benefit. But if this severance can take place into two groups, who can be sued severally, it does not follow that the whole covenant is not also joint, because the severance can not go further, and each individual be sued severally. There is no reason for this. The contract is joint, by the very essence of the covenant. Its form and language may make it, also, several; and, as it depends upon form and language, that may make it entirely several, 'as to all the persons executing, or so only between groups specially or substantially designated ; as if a joint and several covenant be executed by A, and, also, by B and C, as partners, A may be sued severally, and B and C jointly with each other. That joint interest between two of three several obligors, which might be thus implied from their relation to each other, may be also expressed in the form in which they unite in executing a covenant; and it does not, in either case, unless that be also expressed, affect the joint character of the whole covenant.
    The counsel also contends, as this is a covenant to indemnify the plaintiff against an existing debt, that no action accrues until the debt is paid by the plaintiff, or suit brought *against him — and he [166 takes a distinction: if a party, he says, covenant to indemnify another against a liability not in existence at the time of making the covenant, the breach consists in suffering the liability to arise, and for that the action may be sustained. “ But when one is already liable to suit it would seem absurd to suppose that the parties to a contract to indemnify meant to guard against and prevent such liability.”
    We recognize the distinction, in the general terms in which it is laid down, as a sound one. But here is a covenant to pay the debt on a particular day, or sooner, if required, and to indemnify, etc. Now tlie contract, in.the case put by the opposing counsel, by way of contrast, is, that the debt or liability shall never exist. In this ease, the contract is, that the debt or liability shall not exist after a day named. In the one ease it is conceded that the action arises if the debt ever come into existence; in the other, by parity of reasoning, the action must arise if the debt be in existence after the day fixed.
    On this point we refer to the case Exparte Negus, 7 Wend. 499, and Post v. Jackson, 17 Johns. 239, as directly in point, and conclusive íd our behalf.
    John L Green, in reply.
    Counsel for the plaintiff say that we have misapplied the rule, as quoted in the opening, from 1 Chitty’s Pleading, 47. They insist that the undertaking of these parties is for “ one and the same act.” It may be said that the acts to be done are the payment of the money, etc., and that all have stipulated that those things shall-be done. But how ? by whom ? in what order ? It certainly does not follow, because all have stipulated that the thing shall be done, that all are primarily liable if it is not done. Here are express words, showing a distinct and separate liability. “We promise, not that we will do, but that another shall do.” This is nothing more than a guaranty. The nature of such an undertaking is well understood ' It may be more or less extensive, but is a conditional undertaking. In Green v. Dodge and 167] Cogswell, 2 Ohio,*439, the court say, “ the guaranty of the defendants amounts to this — that the guarantors will pay, if the promisors do not; but this is, in its very nature, conditional.”
    The learned counsel admit that the position we assigned to these parties in the opening, that of the principal being a direct unconditional undertading — that of the securities collateral, conditional, is plausible; but they insist that we mistake the effect of this covenant. They say, “ it is the damages only for the breach that are conditional.” It seems to us that this is an attempt to escape from the question, by confounding the form and the consequences of the remedy. It is true, as counsel claim, that the court can not compel the principal to do the direct act which he has covenanted to do. Neither can they compel the securities to do the direct act they have covenanted to do. In other words, a court of law can not compel a specific performance of the covenant; they must adjudge damages for the breach, to the extent of the injury sustained by the plaintiff. This is the conse. quence of a breach of the covenant. We can perceive nothing conditional in this, further than it may be said, as in all cases, that the judgment of the law is conditional upon a breach of the law. The form of the procedure, by which this consequence may be attained, is quite a different matter. Because the judgment of the law may be the same against all the parties for a breach of the covenant, it does not follow that they may all be joined in one suit..
    The learned counsel have not thought proper to answer the argument urged by us in the opening, as to the effect of a release to these ■securities, in discharging the principal. We think it can not be •answered. It is the true test, whether the covenant be joint or not.
   Read, Judge.

The single question in this case, is, whether the defendants can be sued jointly.

When several persons execute an instrument, in parol or under seal, upon the same consideration, at the same time, and for the same purpose, and taking effect from a single delivery, they are, in legal effect, joint contractors or obligors. The *fact that some may have exe- [168 euted it as sureties does not affect the joint nature of the contract or obligation, but is mere evidence of the position of the makers among themselves, and protects the security in such advantage as the law bestows upon that relation. The particular form or manner in which the parties have affixed their signatures to a contract or bond is immaterial. It matters not whether those who execute as sureties sign their names directly under that of the principal, and then append to each name the fact of the signing merely as surety, or, whether, as in this instance, the sureties write between their names and that of the principals; that they sign as securities, and then affix signatures.

In the case of Hunt’s Administrator v. Adams, 5 Mass. 358, a note executed in the precise form of this bond was held, by Chief Justice Parsons, to be joint. In the case of Bright v. Carpenter and Shuer, 9 Ohio, 139, the principle is recognized, that it matters not on what part of a note a person may sign his name, if it be connected with the original execution, he may be treated as a maker. In Morris v. Bird, 11 Mass. 436, it is held, that if a person sign a note after its execution by the principal, if it was understood at the time of making the nóte that such person was to sign it, and the acceptance of the note was in consideration of such signing, he will be held as a joint maker.

The principle to be extracted from all the cases, is, that parties connected with the original execution and delivery of a bond, note, or other written instrument, are, in law, unless it be otherwise clearly expressed, joint makers or obligors

In the case under consideration, the bond was executed at the same time, upon the same consideration, and for the same purpose, and ■with one delivery. There is but one execution, a single covenant, and one entire breach. All covenanted to save Stage, harmless, from further claim from the Ohio Life Insurance and Trust Company. They united in the execution and delivery of the bond, and the law will not sever them in the breach, but hold them jointly responsible for its performance. The demurrer must be overruled.

Judgment for plaintiff.  