Supreme Court of New South Wales

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 210]

[Two out of three joint obligors of a bond cannot be sued on the bond all or each may be sued but not two alone jointly]

Therry v Howe

Action by the assignee of a replevin bond against two out of the three joint and several obligors.  At the time before Stephen J at the sittings in the late term it was objected that two out of three obligors of a joint and several bond could not be sued jointly.

The learned Judge saved the point, and the plaintiff had a verdict subject to the motion.

Moore now moved to arrest the Judgment and cited, Archibalds practice 95.

Norton contra felt the objection to be a fatal one.

[p. 211] Per Curiam. You cannot sue two out the three jointly, of the obligors of a joint and several bond. You may sue each seperately, or all jointly. This is a point too plain for argument.

Judgment arrested.