|
|
|
|
|
|
|
|
|
|
|
|
|
|
672 THE CAPE SABLE COMPANY'S CASE.
ings and proofs, as they now stand, and upon which all parties
hare united in calling for a decision of the court, it would be
utterly impossible to make any such distinction as regards their
claim; because it does not appear, nor has the court been fur-
nished with any means of ascertaining what proportion of the pur-
chase 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 and 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 ob-
tain satisfaction, to the full extent of their respective liens in pre-
ference to all others, from the whole amount now about to be dis-
tributed.
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 proceed; 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, (t) Therefore all
these exceptions 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 rule 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, (u) 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 was pleaded or made, no sort of
benefit; either because his own claim could not be sustained, or be-
cause, being established, it could not be in any way affected by the
allowance or rejection of the claim against which the plea or objec-
tion was directed, then it would be tolerating mere wanton mis-
chief to allow such a creditor to disappoint his co-creditor from
|
|
|
|
|
|
|
|
|
|
(I) Bennet v. Lee, 2 Atk. 529; Welch 9. Stewart, 2 Bland, 37. —(u) McCormick
v. Gibson, ante 499, note.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
 |
