
    Orren E. Downing vs. Patrick Coyne & another.
    Suffolk.
    November 14.—27,1876.
    Ames & Devens, JJ., absent
    Where one of two persons, sued jointly in an action of contract, is alone found liable and appeals, the sole issue at the trial of the appeal is his own liability to the plaintiff, and, on his admitting it, judgment may, under the Gen. Sts. c. 133, § 5, be rendered against him, whether his liability is joint or several.
    Contract on an account annexed against Patrick Coyne and Daniel Briscoe, as copartners. In the Municipal Court of the city of Boston, judgment was rendered for the defendant Briscoe, and for the plaintiff as against the defendant Coyne. Erom this judgment Coyne appealed to the Superior Court, and duly entered his appeal. Neither the plaintiff nor the defendant Briscoe entered an appeal, but Briscoe duly entered his appearance and filed his answer in the Superior Court.
    At the trial in the Superior Court, before Pitman, J., all the parties appeared. Coyne admitted that, as between him and the plaintiff, he had no defence to the action; but contended that the issue between him and Briscoe, namely, whether the liability was joint or several, should be tried by the jury. But the judge ruled that the only issue was between the plaintiff and Coyne; and that the judgment in favor of Briscoe, not being appealed from, was final, and instructed the jury to render a verdict for the plaintiff against Coyne only. To this ruling Coyne excepted, and the judge reported the case for the consideration of this court.
    
      P. A. Collins, for Coyne.
    6r. W. Morse, for the plaintiff.
   By the Court.

One defendant only having appealed from the judgment of the Municipal Court, the sole issue in the Superior Court was whether he was liable to the plaintiff, and, he admitting his own liability, the plaintiff was entitled to judgment against him, whether his liability was joint or several Gen. Sts. c. 133, § 5. Wiggin v. Lewis, 12 Cush. 486.

Judgment on the verdict.  