
    *Cartigne v. Raymond and Another.
    November, 1833.
    Chancery Practice — Joint Defendants — Defence by One —Effect—Case at Bar. — tjpon a bill in chancery by a distributee against an administrator and his surety, alleging that the administrator has not duly accounted, and praying an account, the bill is taken pro confesso as to the administrator, but the surety answers, and proves, that the plaintiff, on a full and ilnal settlement, has released the administrator, and so is not entitled to an account; upon which the chancellor dismisses the bill with costs as to both defendants: Held, the bill was properly dismissed as to both defendants.
    This was a bill exhibited in the superiour court of chancery, by Catharine Cartigne against John Raymond, the administrator of Eliz. AUergue (who was the mother of the plaintiff and of this defendant) and Eodowick Brown, the surety of Raymond in his administration bond; charging, that Raymond had settled his account of administration before a commissioner appointed by the hustings court of Petersburg, and by that account appeared to be indebted to his intestate’s estate in a balance of 872 dollars, of which the plaintiff as his codistributee was entitled to a moiety, and that he had never paid the same to her; surcharging and falsifying that account in several important particulars specified in the bill; and praying an account, and a decree for the plaintiff’s share of the just balance which should be found due thereon, against Raj'mond and Brown his surety. Raymond did not appear and answer, and as to him the bill was regularly taken pro confesso. But Brown put in his answer, in which he alleged, that a full and final settlement had been made between Raymond and the plaintiff his sister; that he transferred to her, and she received property to the full amount of her share of their mother’s estate, and she thereupon released him, formally by deed, from all demands on this account; and that this settlement was made, in order that Raymond might fulfil the purpose he then had, of leaving the country, without exposing his surety to loss, and he had since gone away; and he insisted, therefore that the plaintiff was not entitled to the account prayed in her bill. The truth of the answer was proved. And the cause coming on *for hearing as to Raymond by default, and as to Brown on the bill, answer, replication thereto, exhibits and depositions, the chancellor dismissed the bill both as to Raymond and Brown, and gave them both a decree for costs. From this decree, the plaintiff appealed to this court.
    The cause was argued by Allison for the appellant, and Spooner for the appellee.
    There was some discussion upon the merits, whether the proofs established the defence set up in Brown’s answer; but of that the court saw no reason to doubt. The only point of law was a question of practice; namely, whether, as the allegations of the bill stood confessed as to Raymond, he standing out in default, it was proper to dismiss the billas to him as well as Brown?
    
      
      Chancer*' Practice — Joint Defendants — Defence by One — Effect.--Where a bill is filed against two or more defendants jointly interested, and is taken for confessed against one or more of them -for want of appearance, and one or more of the other defendants appear, make defence, and disprove the complainant's case, the bill should be dismissed as to all the defendants. This is well settled. Aiken v. Connelley, 2 Va. Dec. 384. citing the principal case. To the same effect, the principal case Is also cited in Payne v. Graves, 5 Leigh 562, 579, and foot-note; Ashby v. Bell, 80 Va. 819; Terry v. Fontaine, 83 Va. 458, 2 S. E. Rep. 743; Harrison v. Wanton, 95 Va. 728, 30 S. E. Rep. 372; Echols v. Brennan, 99 Va. 155, 37 S. E. Rep. 786.
    
   TUCKER, P.

Though the bill was taken for confessed as to Raymond for want of an appearance and answer, .yet his codefend-ant and surety answered, denied (as far as he could deny) the allegations of the bill, and has disproved them. He is then entitled to a dismissal, clearly. Now, his defence did not rest on matter separate, distinct, and applying only to himself. Admitting Raymond to be indebted, the surety had no defence. He defended himself by disproving the charge against his principal, for whom he was bound. They are conjunct in interest. If Raymond had wasted or purloined the estate, the other defendant was bound as his surety, and could not be discharged. The case is therefore clearly within the principle of Clason v. Morris, 10 Johns. Rep. 524. Were it otherwise, it would lead to this absurdity, that after dismissing the bill as to the surety, and decreeing against Raymond, the plaintiff might immediately bring her suit on the bond against the surety, and recover at law, though he had been discharged here.

Decree affirmed.  