CAPE SABLE COMPANY'S CASE.—3 BLAND. 647

made the sale under the decree, or from the whole of the proceed-
ings * and proofs, as they now stand, and upon which all
parties have united in calling for a decision of the Court, it 672
would be utterly impossible to make any such distinction as re-
gards their claim; because it does not appear, nor has the Court
been furnished with any means of ascertaining what proportion of
the purchase money, now about to be distributed, was agreed to be
paid for the real estate, and what proportion for the personalty.

Therefore those who have thus stood by, and acquiesced in these
two different kinds of the estate of their debtor being undistin-
guishably blended aud mingled, must abide the consequences; and
as the rights of these judgment creditors cannot be jeoparded or
impaired by any fault, not their own, they must be allowed to
obtain satisfaction, to the full extent of tlieir respective liens in
preference to all others, from the whole amount now about to be
distributed.

These plaintiffs and several of these claimants have, by their
exceptions to the auditor's report, relied upon the Statute of Limi-
tations as a bar to some of the claims made against the Cape
Sable Company. But the Statute of Limitations, or any other
defence, cannot be resorted to by him who has already chosen his
defence, rested his case upon it, and suffered the case so to pro-
ceed; or had a hearing or decision upon such defence; because if
a party were allowed to avail himself first of one defence and then
of another, there would be no end to litigation. Bennet v. Lee, 2
Atk. 529; Welch v. Stewart. 2 Bland, 37. Therefore all these ex-
ceptions against the claims of Oliver and Carroll, must be rejected;
even supposing they were now open to such an objection as the
Statute of Limitations, as they are not.

According to the rale laid down for the government of this
Court, however, a plea of the Statute of Limitations can only be
allowed to enure to the advantage of him by whom, it is pleaded.
McCormick v. Gibson, ante. 499, note. But, if upon this principle
the full operation of the plea, or indeed of any other objection,
would completely exclude a claim; and yet would afford to him by
whom it is pleaded or made, no sort of benefit: either because his
own claim could not be sustained, or because, being established it
could not be in any way affected by the allowance or rejection of
the claim against which plea or objection was directed, then it
would be tolerating mere wanton mischief to allow such a creditor
to disappoint his co-creditor from * obtaining satisfaction,
when he, himself, could derive no possible advantage from 673
it. For, after the claim of a creditor has been rejected or satis-
fied, he is, as to the surplus, a mere stranger, and cannot be allowed
to interfere with the distribution of it in any way whatever.

Therefore these pleas of the Statute of Limitations, as well as all
other objections, as coming from Oliver, Carroll and O'Hara, and