By the Court,
Bronson, J.This was not the case of a joint contract, and the plaintiffs could proceed only against the party who had been brought into court. If they could not declare against him alone, they had no alternative but to abandon a suit which had been properly commenced. We have already gone very far in allowing a severance, where the plaintiff proceeds under the statute authorizing the holder to include all the different parties to a note or bill in one ac*643tion. Fuller v. Van Schaick, 18 Wendell, 547. Clark v. Parker, 19 id. 125. I think a severance of the action should be allowed in this case. It forms a necessary~xception to the general rule, that in bailable actions the declaration must follow the process.
Motion denied.