Porter v. Dickerman , 77 Mass. 482 ( 1858 )

Metcalf, J.

Here is a palpable misjoinder of plaintiffs, which is fatal to the maintenance of the action by all or by any one or more of them. Therefore, according to the terms of the award, the court cannot render judgment on it for all or any one or more of them ; but must render judgment for the defendant, unless the plaintiffs amend, under St. 1839, c. 151, § 2, by striking out of their writ one or more of their names. Such amendment may, by that statute, be permitted in any stage of the proceedings, when, in the opinion of the court, the ends of justice will be thereby subserved.

In this case, the plaintiffs may amend by striking out the names of such of them as have no interest in the suit, on paying costs, including the arbitrator’s fees. On thus amending and paying costs, the rule of reference is to be discharged and the case sent back to the court of common pleas for further proceedings. If the plaintiffs do not thus amend and pay costs, then judgment is to be rendered for the defendant, on the award, at a future term of the court.