
    *Turner v. Davis and Others.
    February, 1836,
    Richmond.
    (Absent Cabell, J.)
    Equity Practice — Failure to flake Defence at Law-Right to Relief., — in a motion by T. against D. to recover money which T. alleged he had paid as D.’s surety, the court holds they were both principals, and gives T. j udgrment against D. f or one moiety of the money paid, D. making no defence at law; then D. flies a billin equity, shewing thatT. was the principal, and he the surety, and states a reason for his failing to defend himself at law, which he does not prove to be true ; he proves, that T. was the principal, and he the surety ; but Held, his case is not relievable in equity.
    Davis holding a bond of one Johnson, in which Turner was partly interested with him, put the same into the hands of Turner to collect. Turner having negotiated ,an assignment of this bond to Nicholls for valuable consideration, applied to Davis to join him in the assignment; and the assignment of the bond to Nicholls was executed both by Davis and Turner; but Turner alone received from Nicholls the whole consideration. Nicholls brought a suit on the bond, against Johnson, the obligor, who defended himself upon the ground that the bond was given for a gaming consideration, and upon that plea defeated the action. Whereupon Nicholls brought a suit against Davis and Turner, upon their joint contract of assignment, and recovered judgment against them both for the amount of the assigned bond; which judgment was discharged by Turner. And then Turner made a motion against Davis, for the money so paid by him in discharge of Nicholls’s judgment, as money paid by him as Davis’s surety. This motion was first continued at Davis’s costs, and then continued for four successive terms of the countj7 court; and at the sixth term, the court, considering Davis and
    Turner as both principals in the assignment to Nicholls, gave Turner *a judgment against Davis for half the sum that Turner had paid to Nicholls. Upon this judgment Turner sued out a ca. sa. against Davis; and Davis being taken in execution upon this process, the sheriff refused to permit him to go home, or to accompany him thither in order that-he might deliver property in discharge of his body. In this state of things, Turner agreed, that if Ferguson, a friend of Davis, would give him his own bond for the amount of the debt, he would release Davis from custody. Ferguson gave Turner his bond accordingly, and Davis was released. Ferguson knew, at the time, that Davis denied the justice of Turner’s claim; but he said, that if Davis did not pay the debt, he would. Ferguson’s bond was assigned by Turner to Saunders & Co. and by them to Early, who brought a suit on it, and recovered judgment against Ferguson, and then assigned the judgment to Hale.
    Whereupon Davis and Ferguson exhibited a bill against Turner and his assignees, in the superiour court of chancery of Dynch-burg, setting forth the facts above detailed ; shewing that Turner had received the whole consideration paid by Nicholls for the assignment of Johnson’s bond; that therefore he was in truth the principal in the contract of assignment of Johnson’s bond to Nicholls, and had no right to call upon Davis for contribution ; so that the judgment which Turner had recovered against Davis, and which was the sole consideration of Ferguson’s bond to Turner, was unjust and oppressive; that that judgment was recovered by Turner against Davis in consequence, as he supposed, of the absence of Nicholls, by whom it could have been proved that Turner received from him the whole consideration for the assignment of Johnson’s bond: which evidence Davis was unable to obtain, as Nicholls, at the time of the judgment, and for some time before, was absent in some one of the northern states. Wherefore, the bill prayed an injunction to stay proceedings on the judgment *which Early assignee of Saunders & Co. assignees of Turner, had recovered against Ferguson, and general relief.
    The injunction was awarded.
    Turner, in his answer, denied the principal allegation of the bill, namely, that he received from Nicholls the whole consideration for the assignment of Johnson’s bond to Nicholls, and asserted that the money received from Nicholls was equally divided between Dayis and himself.
    The defendants Saunders & Co. Early and Hale denied all notice of the plaintiffs’ equity alleged in the bill.
    All the allegations of the bill were substantiated by incontrovertible proofs; except that it was not proved that Nicholls was absent from the country at the time Turner recovered his judgment against Davis, though Nicholls was examined as a witness in this suit in chancery. •
    The chancellor, upon a hearing, perpetuated the injunction, and proceeded to make a decree between the co-defendants, whereby Turner was made responsible to his assignees for the amount of the judgment which they had recovered against Ferguson, and from which Ferguson was relieved by the decree.
    Turner applied by petition to this court, for an appeal from the decree; which was allowed.
    Johnson, for the appellant.
    No counsel for the appellees.
    
      
      Equity Practice — Failure to Make Defence at Law-Right to Relief —On this question the principal case is cited in foot-note to Haden v. Garden, 7 Leigh 157 ; footnote to Donnally v. Ginatt, 5 Leigh 359 ; Slack v. Wood, 9 Gralt. 43. The principal case is reported with a note in 30 Am. Dec. 502.
    
   TUCKER, P.

It is the settled rule of this court, that where a party has been grossly inattentive and negligent of his defence at law, he shall have no relief in equity. Here it appears, that Turner’s motion against Davis was first continued at the defendant’s costs; so that he appeared to defend himself upon the motion ; and it was continued, from month' to month, for several ^successive terms afterwards. At length judgment was rendered against him, because, as “he supposed,” Nicholls was not present to testify. If he had cause for continuance for Nicholls’s testimony, he ought to have applied for a continuance, and if it was refused, taken an exception. This he did not do; and then he comes into equity, alleging Nicholls’s absence from the country at the time of the trial; but he does not prove it, though Nicholls himself was examined. It is impossible, without an entire overthrow of established rules, to sustain the bill in such a case. This I should much regret, as there seems every reason to suppose that Turner received the whole money from Nicholls, but that it is manifest to me, that while Davis held out the threat of contesting Turner’s right of recovery, he was willing enough to avail himself of the arrangement made by Ferguson, by quitting the close custody in which he was. If he can be considered as assenting to the arrangement, then the case is one of compromise and adjustment of a subsisting dispute, and so ought to terminate the contest. If he did not assent, then Ferguson has introvened of his own accord, and has, for the consideration of his bond, obtained the discharge of Turner’s debtor, with full knowledge of the debtor’s denial of the debt. In this aspect of the case; he must be held responsible, whether he can have recourse to Davis or not. His responsibility is independent of Davis’s. The consideration of his bond is the release of Davis from custody, not the debt due from Davis; and, accordingly, we find he gave the assurance at the time tha.t he would pay whether Davis did or not.

The other judges concurred. Decree re versed, and bill dismissed.  