1. The court has no doubt that the exceptions taken at the trial to the instructions to the jury cannot be sustained. By the proceedings between all the members of the firm of W. C. Leonard & Company, stated in the report, the debts due ta that firm, called “ bills receivable ” in the *219'correspondence between the partners, which in fact included the claim of the firm against John V. Robbins, one of the partners, upon the order of December 4th 1858, became the property of the plaintiff alone. The fact that the other partners were ignorant that John V. Robbins was the debtor did not affect the right of the plaintiff against him after this claim had thus become the plaintiff’s property. This right could have been enforced in equity, if not at law, and was a sufficient consideration for his subsequent note.
2. But it is now argued that judgment cannot be entered on the verdict in its present form. Although this point was not raised at the trial, and is inconsistent with the terms of the report upon which the case was reserved, we have felt bound to consider it, for no agreement or assent of parties will enable the court to render a judgment which the law does not warrant.
At common law, the objection to such a judgment was twofold. Causes of action against two or more defendants jointly and against one of them severally, could not be joined in the same declaration. 1 Chit. PL (6th ed.) 232. Claremont Bank v. Wood, 12 Verm. 255. And in an action of contract against two or more jointly, upon a verdict or default against some of them only, no judgment could be rendered for the plaintiff, because the contract found was not the contract declared on. 2 Rol. Ab. 707, pl. 49. Tuttle v. Cooper, 10 Pick. 281. Soon after the decision of this court in the case last cited, the legislature passed a statute, which, with occasional modifications, has since continued in force, authorizing the plaintiff in an action of contract against two or more defendants, to take judgment against those, though less than all sued, who should appear upon the trial to be liable. St. 1834, c. 189. Goodnow v. Smith, 18 Pick. 414. Rev. Sts. c. 100, §§ 6, 7. Hathaway v. Crocker, 7 Met. 268. St. 1851, c. 255. Wiggin v. Lewis, 12 Cush. 486. The existing statute provisions on the subject, upon which the plaintiff relies, are as follows: “ In any action, founded on a contract express or implied, in which there is more than one defendant, the plaintiff shall be entitled to judgment against such defendants as are defaulted, and against those who upon *220trial are found liable on the contract declared on, notwitbstand-» ing it is found that all the defendants are not jointly liable thereon. In such action, when any defendants are defaulted, and upon trial any of the others are found liable, the court shall render, judgment both against those defendants defaulted and those found liable for the debt or damages, with costs to the time of the default, and against those who defend, for all costs accruing after the default; and shall issue separate executions on such judgment.” Gen. Sts. c. 133, §§ 5, 6.
These statutes have not authorized the joinder in one action of one count on a joint contract of all the defendants, and another count on a separate contract of one of them ; or allowed judgment or execution against one defendant for one debt, and against the other defendants or all the defendants for a different debt. If they had, a plaintiff might join in one action against two defendants counts upon two contracts, alleging them to be joint, one of which was in fact made by each severally ; and recover judgment against each defendant upon his several contract, with which the other defendant had nothing to do. These statutes were intended to enable the plaintiff to recover one judgment upon one contract against such of the defendants as should appear to be actually liable thereon, but not different judgments in one action upon independent contracts which by the rules of the common law could not be joined in one action. In other words, they have cured the objection of variance in the proof of the parties contracting, but have not touched that of misjoinder of causes of action in the declaration. The only case in which our statutes have so far modified the common law as to allow several judgments upon different contracts in one action is where they all arise out of one written instrument, as upon one bill of exchange or promissory note. Gen. Sts. c. 129, § 4. The difficulty in this case has been occasioned by the plaintiff’s suing in one action upon three promissory notes which have proved to be entirely distinct in their nature, one note being the several contract of one of the defendants, and the others the joint contracts of all. If the declaration had stated the contracts as they have been found by the jury, it *221would have been bad upon demurrer, and must have been amended by striking out either the count on the several contract, or those on the joint contracts. As the misjoinder in this case did not appear upon the record until the return of the verdict, it may be taken advantage of at this stage. The plaintiff may therefore amend his declaration as he may elect, either by striking out the counts upon the joint notes, and paying costs to those defendants against whom a verdict was returned on those notes only; or by striking out the count upon the note on which John V. Robbins alone has been found liable; and according to his election the verdict may be amended so as to stand for the plaintiff on the count or counts which he elects to retain, and Judgment rendered thereon, with costs.