delivered tbe opinion of tbe Court, Ceock-ett, J., Temple, J., and Bhodes, O. J., concurring:
Supposing tbe agreement of October, 1868, to be a discharge of tbe original debt tben in suit, it was still necessary for Burdett to plead it in defense of tbe pending-action. Tbat, however, is not tbe point on which tbe case must turn. He bad been personally served with tbe summons and copy of tbe complaint- in tbe action, in which be was notified tbat unless be made answer in a given time a judgment by default would be taken against him. He did not make answer at any time. He made an agreement, it is true, with tbe plaintiffs, in which it is admitted tbat $2,459 44 is “ now due” and is to be “ settled” in tbe particular manner. I do not see that tbis agreement now produced by Burdett upon tbe other point goes very far to show tbat be really was (as be now contends) “never at any time, either individually or in connection with bis co-defendant, indebted to said plaintiffs” at all. It is, to say tbe least, somewhat remarkable tbat be should undertake to “settle” a sum “now due,” but in connection with which there was not, as be now says, tbe slightest liability resting upon him, and tbis, too, without any request from Woodworth, who is an admitted debtor of tbe plaintiffs upon tbis claim. There is nothing in tbe making of tbis agreement, which, of itself, should have put Burdett off bis guard in tbe defence of tbe pending suit. It is not pretended on bis part tbat tbe plaintiffs promised to discontinue tbe suit, or to delay its progress. His excuse is tbat be supposed tbat tbe suit would be dismissed. Tbis supposition, be says, was based upon tbe terms of tbe agreement of October, but I think it was wholly unwarranted. Besides tbat, it appears tbat, on November 30th, be and tbe plaintiffs bad a difference about tbe meaning of tbat agreement, 'and Burdett, under tbat date, writes to them: “ I must therefore, decline making payment.” Tbis cir*101cumstance, at all events, ought to have awakened his attention to tbe suit wbicb be certainly did not know to have been discontinued; and bad be moved, even at that late day, be would bave been in time, for tbe judgment by default was not rendered until one month afterward.
I am unable to see, under tbe circumstances, that tbe Court below abused its discretion in refusing to- open tbe default, and its order is, therefore, affirmed.
Sprague, J., expressed no opinion.