Ellison v. New Bedford Five Cents Savings Bank

130 Mass. 48, 1880 Mass. LEXIS 327

Opinion

Gray, C. J.

The merits of this case cannot be decided upon the report before us. The declaration is for a sum of money due to the plaintiffs jointly. But upon the evidence introduced at the trial, if they have any cause of action against the defendant, their claims are several, and not joint, and cannot be united in one action. Gould Pl. c. 4, § 52. Whiting v. Cook, 8 Allen, 63. A judgment for the plaintiffs jointly would not accord with the proof; and a judgment for either pf them severally would not correspond with the declaration, and would be reversible on writ of error. The fact stated in the report, that the defendant made no objection to this joint action, cannot enable the court to enter a judgment which the law does not warrant. Leonard v. Robbins, 13 Allen, 217.

Judgment for the defendant.