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Boston and Maine Railroad v. Portland, Saco and Portsmouth Railroad Company
Gray, C. J.
It nos long been a settled rule in this Commonwealth, in accordance with the law as understood in England at the time of our Revolution, that when a person, answerable in contract to two jointly, settles with one of them, so that that
[500] one has no longer any real interest in the matter in dispute, it is a severance of the cause of action, and the debtor is liable in an action at law to the other alone. Lord Mansfield, in Garret v. Taylor (1764), and Kirkman v. Newstead (1776), 1 Esp. Dig. 117. 1 Chit. PI. (2d Am. ed.) 7. Austin v. Walsh, 2 Mass. 401, 405. Baker v. Jewell, 6 Mass. 460, 461. Holland v. Weld, 4 Greenl. 255. New Braintree v. Southworth, 4 Gray, 304, 306. Sawyer v. Steele, 4 Wash. C. C. 227, 228.
A rule of practice, long recognized and acted on, and so simple and convenient, enabling a court of law to do justice between the parties, without joining as a formal plaintiff one who has no real interest in the controversy, or compelling a resort to equity, should not be reversed upon technical grounds, or because the modern rule in England is different. See Hatsall v. Griffith, 4 Tyrwh. 487 ; S. C. 2 Cr. & M. 679.
The original agreement of this defendant was with the plaintiff and the Eastern Railroad Company jointly. But the subsequent contract of that corporation with the defendant to pay, release and discharge all its debts, and to indemnify it against all demands, while it did not amount to a formal release, did put an end to all real interest of the Eastern Railroad Company in the liability sought to be enforced in this action.
There being nothing in the report to show that the application of the Massachusetts rule will produce any inconvenience or danger of injustice, the case, according to the terms of the reservation, is Referred to an auditor.