It was argued that by the default of Hale, the maker of the note, to plead to the declaration, and the plea put in by Storey, the endorser, the joint proceedings against them were severed. We do not so read the statute, which would be of little avail if it was in the power of defendants, after the plaintiff had elected to proceed against them jointly, by any act of theirs to' sever the proceedings. It is provided by §4170 of Compiled [Laws, that the plaintiff may in certain cases sever the proceedings. It does not, however, make it obligatory on him to do so, on the happening of the contingency in which it may be done, but leaves it optional with him to do it or not, as he may think most for his interest. The sole object of the section is to prevent unnecessary delay against a part of defendants, by reason of a defense interposed by others. The plaintiff might have proceeded against Hale alone, but it was for him to elect whether he would do so or not. He had a right to a joint judgment against both, if he could establish the’several liability of each; and the order for the jury that tried the issue, on Storey’s plea, to assess the damages on the interlocutory judgment against Hale, was correct. The judgment must be affirmed.
Duffield moved for the allowance of damages, under § 5612 of Compiled Laws, for the delay caused by the writ of error, which he claimed was brought on frivolous grounds.
The Court, not being satisfied of a want of good faith in bringing the writ, denied the motion.