Paine v. Chase

By the Court,

It is not denied that judgment by default was properly taken against Bigelow. By the second alternative of the second section of the statute, (Sess. L. 1835) p. 248,) on his suffering a default, the plaintiff was entitled to go on against him alone; in other words, to sever, and go to a trial as to the other parties—that is, all of such parties. Then the other alternative is, that if the trial be put off by any of the parties, the plaintiff may try as to the others. The cause was not so put off. There is no third alternative on which the plaintiff could sever at the trial, as he did in this case. He was irregulars

Motion granted.