Dey v. Martin

Citations

• 78 Va. 1
• 1883 Va. LEXIS 1

Syllabus

<p>1. Principal and Surety-Discharge of surety.-It is well settled that any change in the contract made without surety’s consent, however immaterial, and even if for his advantage, discharges him. ■</p> <p>2. Equitable Jurisdiction and Relief-Judgment at law.-To entitle party to relief in equity against judgment at law, he must not merely show that injustice has been done, but that he has been guilty of no laches about his defence at law. “It is more important that there should be an end of litigation than that justice be done in every case.” Wallace v. Richmond, Assignee, 26 Gratt. 67.</p> <p>3. Idem-Idem.-Relief will always be granted where failure to defend at law resulted from the acts or representations of the opposite party, or his agents, or from fraud, accident, surprise, or other adventitious circumstance beyond complainant’s control. Holland and Wife v. Trotter, 22 Gratt. 141.</p> <p>4. Idem-Idem-Case at bar.-B makes a note which is endorsed by M, and discounted by bank. For non-payment at maturity, note is protested and suit brought on it. Maker makes partial payment, and payment of balance is extended to a given day. Payment not being made at said day, suit is again brought. Endorser is a non-resident, but is induced to accept service of process, without information of the partial payment and extension of time, and judgment is had. Afterwards with knowledge of the partial payment, but in ignorance of the extension of time, endorser executes trust deed to secure the balance. Trustee advertises trust property for sale ; endorser files bill setting up foregoing facts and sale is enjoined.</p> <p>Held :</p> <p>1. The extension of time to maker released endorser.</p> <p>2. Endorser’s failure to defend successfully at law resulting from no laches on his part, but from circumstances entitling him to equitable relief, the judgment and the trust deed should be perpetually enjoined.</p> <p>3. Having executed the trust deed in ignorance that he had been released as