Bill v. Boynton

33 N.E. 399, 158 Mass. 274, 1893 Mass. LEXIS 282

• Court: Massachusetts Supreme Judicial Court
• Decided: March 2, 1893
• Status: Published

Opinion

Holmes, J.

“ One of the defendants was sued as promisor, and the other as indorser, of a note; and though by statute they may be sued jointly, yet they.must defend separately. The court properly held that each was entitled to tax his costs.” Taylor v. Jaques, 109 Mass. 270. The distinction suggested between the present case and that is, that in this the defendants answered jointly in the Municipal Court and severally in the Superior Court only. It is said that, having elected to plead jointly, they must stand by their election. If this were true, it should have been urged as a reason for not allowing the defendants to plead severally. But there was no such conclusive election. Pub. Sts. c. 155, § 28 ; c. 154, §§ 39, 43. Jaha v. Belleg, 13 Allen, 78, 80. The defences were several in their nature, even if presented jointly ; and when the defendants came to file written answers, they had a right to make them several in form as well as in fact. On this point the case is stronger, if anything, in favor of the defendants, than an action for a joint tort, and in cases of that sort it is settled that, if defendants who have joined below sever on appeal, they may be allowed several costs from the time of pleading severally. Fales v. Stone, 9 Met. 316, 318. West v. Brock, 3 Pick. 303. See Prescott v. Bartlett, 43 N. H. 298. In the taxation appealed from, there was no attempt to tax the plaintiff twice for expenses incurred for the common benefit. Davis v. Hastings, 8 Cush. 313, 315. Fales v. Stone, 9 Met. 316, 318.

The defendants, having prevailed upon this appeal, are to be allowed the costs of this also. Pub. Sts. c. 198, § 27. O'Connell v. Bryant, 126 Mass. 232. New Haven & Northampton Co. v. Northampton, 102 Mass. 116, 126.

Taxation affirmed, with costs of appeal.