The contract declared on is the joint undertaking of the subscribers to pay the plaintiff for his services in organizing the corporation, and under the answers each of which contains a general denial, he was required to prove the promise as alleged. Bartlett v. Robbins, 5 Met. 184. Wood v. Farmer, 200 Mass. 209. Boston Relief & Submarine Co. v. Burnett, 1 Allen, 410. Armsinck v. American Ins. Co. 130 Mass. 185, 188. And the cause of action having been severed by the death of Stephen Salisbury, his executors, although sued with them, were not jointly liable with the survivors. Von Arnim v. American Tube Works, 188 Mass. 515, 520, and cases cited. The misjoinder could have been availed of by demurrer, but, as this defense also could be raised under a request made after the plaintiff’s opening and before any evidence had been introduced, the judge properly directed a verdict for these defendants. Hey v. Prime, 197 Mass. 474, 475. Livermore v. County of Norfolk, 186 Mass. 133, 135; S. C. 189 Mass. 326. Walpole v. Quirk, 143 Mass. 72. Cowley v. Patch, 120 Mass. 137. Tuttle v. Cooper, 10 Pick. 281.
But if under the R. L. c. 141, § 8, the executors in a separate action would be liable as if the contract of the testator had been joint and several, yet at common law as well as by the R. L. c. 177, § 6, the living defendants and promisors, although neither is bound by himself, are bound jointly to the full extent of the promise. New Haven & Northampton Co. v. Hayden, 119 Mass. 361. Colt v. Learned, 133 Mass. 409. Foote v. Catting, 195 Mass. 55. Meyer v. Estes, 164 Mass. 457.
It was open to the plaintiff as soon as the defense of misjoinder had been raised to have moved to discontinue, and no amendment to the declaration would have been necessary. Taft v. Church, 162 Mass. 527, 533; S. C. 164 Mass. 504. The verdict for the executors, however, in so far as the other defendants were concerned operated only as a discontinuance, and the action remained joint as to the survivors. Philadelphia & Reading Coal & Iron Co. v. Butler, 181 Mass. 468. Hathaway v. Crocker, 7 Met. 262, 268. The plaintiff having been entitled to a trial on the merits, the *378judge erroneously ruled that the action could not be maintained.
It is urged, that, even if reversible error appears, this court has no jurisdiction because of the delay of more than two years which have elapsed between the trial and the filing of the report. A party aggrieved may come to the full court on questions of law, either by appeal from errors of law apparent on the record, or by exceptions, or in the discretion of the trial judge by report. R. L. c. 173, §§ 96, 105, 106. If he resorts to an appeal, or bill of exceptions, the time within which the right must be exercised is limited. But whether a case shall be reported rests upon the discretionary power of the judge, who need not accede to the request of the defeated party, and whose action in taking the necessary steps, where a report is to be made, is governed by what he deems to be reasonable and just under the circumstances. R. L. c. 173, § 105. Newbury port Institution for Savings v. Coffin, 189 Mass. 74. Smith v. Lincoln, 198 Mass. 388. Strong v. Carver Cotton Gin Co. 202 Mass. 209. The defendants understood by the judge’s order shown by an entry on the docket, that the case had been continued for the purpose of being reported, and' the mere lapse of time, where the defendants do not appear even to have requested that the report be prepared and filed, or to have suffered the loss or impairment of any legal right, is insufficient to deprive the plaintiff of the benefit of the statute.
By the terms of the report, judgment on the verdict is to be entered for the executors, while the verdict for the other defendants is set aside and a new trial granted.
So ordered.