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46 WALSH v. SMYTH.
sufficiently legal foundation to sustain them all; and that too, not-
withstanding the default of the holders of any others of them in
not answering as warned by the order of publication. The power
of the court to take the bill pro confesso for the benefit of the
plaintiff, upon a defendant not answering after a constructive
notice by publication, must be taken to be subject to the nature of
the case, and at its discretion; for otherwise, if the court was
bound, as in a case of this kind, to take the bill pro confesso as
against an absent defendant who had failed to answer, then it
might be compelled to pass a contradictory decree; to say, that as
against one defendant the consideration of a bond was legal and
valid; and yet as against another, that the same consideration was
corrupt and utterly worthless. It is certain that peculiar circum-
stances, in a case like this, where the bonds had passed into the
hands of several distinct assignees, might have given to the plain-
tiffs a separate ground of relief against one assignee which would
not be of any avail against the holders of the other bonds. But
here it is manifest, that all the bonds having the same common
consideration, that consideration must be impeached as to all, or
be allowed to stand as a legal support for all.
In this case some of the defendants have answered and others
have failed to answer after publication; and all the allegations of
the bill which would, if admitted or established, entitle the plain-
tiffs to the relief they ask, have been denied by the answers of the
responding defendants, and have not been sustained by the proofs;
therefor as to them, that consideration which is common to all
the bonds remains valid and unimpeached. But the same conside-
ration cannot be deemed valid in favour of one as to the whole
purchase money, and utterly invalid as regards another claimant,
who rests his pretensions altogether upon the same consideration.
Hence, as this consideration has been sustained by the responding
defendants, it must be deemed valid as to all, although the bill
might, in other respects, have been taken pro confesso, as against
those who have not answered, and therefore the plaintiffs can obtain
relief against none of these defendants, (b)
(6) Lingan v. Henderson, 1 Bland, 236.
DORSEY v. DORSEY.—The bill stated, that Edward Dorsey had given his bond to
Ely Dorsey for the payment of £42 15s. 1d.; that the bond was lost; that the claim
had been assigned to the plaintiff; that the obligor was dead; that his personal es-
tate had been exhausted in the payment of his debts; and that be bad devised his
peal estate to the defendants, in whose hands the bill prayed that the real assets
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