¶1delivered the opinion of the court.
¶2The motion for a new trial was made on the ground of newly discovered evidence, and was, we think, properly overruled.
¶3The casual declaration of the appellee in conversation with a third party, that he did not look to the appellant for the money, but to Merritt, could not operate a discharge of the appellant’s liability.
¶4The creditor can look to either of his debtors liable for the same debt, or to both, at pleasure, and can prosecute his claim against one or the other or both, at his will, or according to the chance of recovery; and where both are equally and primarily liable, as in this case, he can change his intention as to the party to be sued, without any regard to previous declarations, where no discharge has been given. The appeal appears to have been frivolous and taken for delay, and it is therefore ordered that the judgment be affirmed with damages.