Macon & Western R. R. Co. vs. Parker. conclusion in good faith to the contractors, and the decree was in conformity with the practice and usage in Equity, not pretending to fix or establish the payment or priority of any particular debt, but leaving this matter to be settled among and between the creditors themselves, upon coming in upon the fund under the decree, (lb.) I am at a loss to perceive upon what principle this transaction, so just to Parker and beneficial to all concerned, is to be impugned, and the title to the property, acquired under it, vacated-none that will bear the test of legal investiga tion. The bill charges, that it was supposed, that out of the proceeds of the sale, the contractors' lien would be first satisfied, but that the lien of the bill-holders was decided, by this Court, to over-ride the mortgage lien, except to that part of the road above Griffin, which was built by the contractors; and that this portion of the fund was not sufficient to discharge all the mortgage contracts, or even the $47,500, held by the complainant. Surely, this assignee does not come into Equity to get more than the laws of the land will award to him? Under this judicial sale, every dollar which that portion of the road brought, built by the contractors, to the extent of the work they performed and the materials they furnished, has gone into their pockets; and because it fell short of extinguishing their demand, and the balance of the money arising from the sale of that part of the road constructed by the company previous to its insolvency, and to the contract of 1842, has been distributed to the bill-holders, by virtue of their statutory lien-is this a ground for cancelling Tyler's title? Mr. Parker complains that the property did not sell for its full value, but for much less, owing to the public notice that was given of these liens. If this vast interest, costing as it is charged, nearly $2,000,000, was thus sacrificed, who is to blame? It was not only the most advantageous, but the only possible mode of bringing it into market, to make it command a fair price. Cut up into an indefinite number of small parts, it would have brought nothing, besides thwarting the whole design of the charter, by these fragments being bought by individuals or sepa Macon & Western R. R. Co. vs. Parker. rate companies. Instead of interfering, then, to counteract the praiseworthy object of the decree, why did he not aid in promoting it, and thus subserve, not only his own interest, but that of all the other creditors? The bill admits, that the whole amount divided among all the contractors, was not enough to satisfy the complainant's debt. What a singular proposition then to maintain, that although the whole were only entitled, in Law, to a less sum than this individual claims, out of the entire proceeds, yet that this and every other creditor of the same grade, by standing out and standing off, and pursuing his remedy separately, would realize the sum total of his claim! And if such a procedure were permitted, when and where would these successive foreclosures and sales or sequestrations terminate? There are other interesting aspects in which this question might be presented, but for our dread of being tedious. One view and a controlling one with the Court was this: it is conceded that if the sale had been made under the highest lien, that the title of the company would have been divested, and that the purchaser would have taken the property, discharged of all incumbrances. The record shows that such was the fact. The Central Bank and other bill-holders, and Robert Collins, one of the joint contractors, came in under the decree, and made their claim to the fund. If not parties to the suit before, they became so in fact by thus presenting their demands and submitting themselves to the jurisdiction of the Court. Here, then, were the two highest liens known to the law, upon the entire propertythat of the bill-holders, created by the Statute, on that part of the road built by the company, and that of the contractors, se→ cured by the agreement of August, 1842, on that part of the road they built, and the materials they furnished. How, then, can creditors of equal or inferior grade disturb this transaction? If they have failed to participate in the fund thus raised, it is their own fault. Equity would restrain them from proceeding at Law to enforce their claims-much more will it refuse to sanction the effort now making. Again: the bill admits that the agreement was not performed Morrow et. al. vs. Hanson. on the part of the contractors, nor does it aver an offer to complete the contract, either before or after the sale. If, under these circumstances, the contractors have received compensation as far as the fund would allow, for the work, labor, money and materials, done and expended by them in the construction of the road, can they, in conscience, seek to make the road itself liable for any thing more? We think not; but we prefer to rest this decision upon the broad ground of a more comprehensive equity, and accordingly we hold that the judgment below be reversed, and the demurrer to the bill sustained, upon the ground that the complainant is not entitled to the relief which he seeks. No. 71.-RADFORD E. MORROW et al. plaintiffs in error, vs. SAMUEL HANSON, defendant in error. [1] Where suit was instituted on a promissory note, and the defendant pleaded a total failure of consideration, and alleged a parol warranty of the property for which the note was given, as a part of his defence: Held, that the plaintiff could not avoid this defence by insisting on the Statute of Limitations, although more than four years had elapsed from the time of such parol warranty. Assumpsit and motion for a new trial, in Henry Superior Court. Heard and decided by Judge STARK, October Term, 1850. An action of assumpsit was instituted by Samuel Hanson against Radford E. Morrow and Vincent P. Morrow, on promissory notes, the balance of the purchase money for a jackass, purchased by Morrow from Hanson, returnable to October Term, 1846, of Henry Superior Court. The notes were dated the 1840, and fell due on the 25th day of December of the Morrow et. al. vs. Hanson. same year, and were for thirty dollars each. The defendants pleaded failure of consideration. On the trial the plaintiff demurred to the plea, on the ground that as the warranty of the jack was by parol, and more than four years had elapsed from the time of the making and failure of the warranty, the Statute of Limitations barred the defence. The Court overruled the demurrer. The Jury found a verdict for the defendants; whereupon, counsel for plaintiff moved for a new trial, on the ground that the Court erred in deciding and ruling that the defendants were not barred from pleading failure of consideration to the notes, more than four years having elapsed since the notes became due, and the failure of the warranty of the jack. At October Term, 1850, the Court granted a rule absolute for a new trial, on the ground taken in the rule nisi, and reinstated the case. Whereupon counsel for the defendants excepted and assigned error. W. W. CLARK, for plaintiffs in error. J. FLOYD, for defendant in error. By the Court.-WARNER J. delivering the opinion. The only point in this case is, whether in a suit upon a promissory note by the plaintiff, the defendant may show, by way of defence, a warranty of the property for which the note was given, and that the consideration had totally failed, the warranty being by parol, and more than four years having elapsed from the time of making such parol warranty. The general rule of law is, that where there is a total failure of the consideration, and the defendant has derived no benefit from the contract, or none beyond the amount of money which he has already advanced, such total failure of consideration may be shown in bar of the action. 2 Greenleaf's Ev. §113, 136. So long as the plaintiff has the legal right to sue the defendant, he may defend himself by show Smith & Merritt vs. Dickson and Harris. ing he has no cause of action against him. The note of the plaintiff imports a consideration on its face, but it is competent for the defendant to show, either that there was no consideration, or that the consideration for which it was given has totally failed; in other words, that the plaintiff has no cause of action against him; and it is not competent for the plaintiff to insist upon the Statute of Limitations, in order to avoid the defendant's defence, when he is seeking to enforce the contract against him. So long as the plaintiff has the legal right to sue on the contract, the defendant has the co-relative right to defend it. Let the judgment of the Court below be reversed. No. 72.-SMITH & MERRITT, plaintiffs in error, vs. DAVID DICKSON and JOHN HARRIS, defendants in error. [1] An execution which has been levied, and upon which is an entry by the Sheriff of, levy indefinitely postponed by the plaintiff's attorney, is sought to be enforced by a sale of the property levied on, more than seven years after the date of the entry: Held to be void, upon illegality put in by the defendant in execution, under the Act of 1823. Affidavit of illegality, in Newton Superior Court. Heard and decided by Judge STARK, September Term, 1850. An execution in favor of the plaintiffs in error against the defendants in error, was issued the 13th day of October, 1840, on a judgment rendered on the 1st day of October, 1840. On the fi. fa. there was a levy on real and personal property, bearing date 25th day of December, 1840, and an entry, as follows: "The above levy, advertised for sale the first Tuesday in February, 1841, and postponed by plaintiff's attorney to the first Tuesday in March, 1841, and then postponed indefinitely by said plaintiffs' attorney." The bond given for the delivery of |