We think it very clear that the exceptions to the rulings of the court cannot be sustained. It is a well settled rule of the common law, that in actions on contracts, the contract must be truly set forth, and must be proved as set forth, or the plaintiff will not be entitled to judgment.
By the statute of 1834, c. 189, a change was made in one particular of this rule of law. By that statute, the plaintiff in an action founded on debt or contract, brought against two or more defendants, was authorized to discontinue against any defendant, who should appear before final judgment not to have been a party to the contract, and might thereupon be entitled to recover against any other defendant or defendants in such action.
But this statute was repealed by the revised statutes, and *415a new provision was substituted in conformity with the rule of the common law.
By Rev. Sts. c. 100, § 7, it is provided that “ When any action founded on contract is brought against several persons, the plaintiff may be allowed, at any time before the cause is argued to the jury, and if there is no such argument, at any time before it is committed to the jury by the court, to discontinue, as against any of the defendants ; and the plaintiff may thereupon amend his declaration, and proceed against the other defendants, in like manner as if the action had been originally brought against them alone.”
• By this section, it appears very clear, that without amending his declaration, the plaintiff had no right to proceed against Tucker on his separate promise, as was ruled by the court.
To the other ruling of the court, the plaintiff, we think, has no legal ground of exception.
The plaintiff called several witnesses, by whom he offered to prove, that the defendant Tucker had purchased goods of them, (the witnesses,) on false and fraudulent representations, in the name of Withington and Jones. To this evidence the defendant objected, and the objection was sustained. In the first place, these representations, not being made to the plaintiff, were clearly irrelative, and might nevertheless prejudice and mislead the jury. And, secondly, such fraudulent representations, although made to the plaintiff in pursuance of a fraudulent conspiracy between the several defendants, would not be admissible in an action founded on contract. In this respect, and this only, the ruling at the trial was erroneous ; but to this ruling the defendant only had the right to object. Exceptions overruled