LINGAN v. HENBERSQN.

which I have chosen to consider, is, as to the effect of the bflPs
being taken pro confesso against Stanly, circumstanced as this case is.
If Stonly was the sole defendant, or had distinct rights, I agree
that his default in appearing and answering would have been an
admission of the facts charged in the bill. In Davis v. Davis,
2 Jitk. 21, Lord Hardwicke says, with great propriety, that the
taking a bill pro confesso, in equity, is analogous to taking the
declaration for true, where the plea or answer of the defendant is
insufficient. He was there, however, speaking of a sole defendant;
and, I believe, not a case can be found in which it is insinuated,
that where there are two defendants having a joint interest, and
one appears and answers, and disproves the plaintiff's case, that
the plaintiff can have a decree against the other who had made
default, and against whom the bill was taken pro confesso. It would
be unreasonable to hold, that because one of the defendants had
made default, the plaintiff should have a decree, even against him,
when the court is satisfied, from the proofs offered by the other,
that in fact the plaintiff is not entitled to a decree. Though I
have not met with cases in equity to the point, yet pursuing the
analogy between proceedings at law and in equity, we are not
without very clear authority; for it is a well settled principle of
law, that in actions upon contracts, the plea of one defendant
enures to the benefit of all; for the contract being entire, the plain-
tiff must succeed upon it against all or none; and, therefore, if the
plaintiff fails at the trial upon the plea of one defendant, he cannot
have judgment against those who let judgment go by default.
It would require the most binding authorities to induce me to yield
iny assent to such a proposition as that set up by the respondent's
counsel; and, indeed, the result would be extraordinary, for if one
defendant entitled himself to a decree, where the interest is joint
and inseparable, a decree must be made in his favour as to a moiety
of the matter in issue, and against the other who made default for
the other moiety; that is, the plaintiff would get one half of a
decree, and the other defendant, the other half. It cannot be so;
we must consider Clason's defence as enuring to the benefit of

The judge, with whom the minority concurred, says in relation
to this matter, " the two judgments are, therefore, in force, and
entitled to priority of satisfaction. I think, however, that the
appellant ought not to be allowed more than a moiety of these
judgments. For it appears from his answer, that the consideration