The decision when this cause was here before,
has been singularly misapprehended. The effort of the Judge who delivered the opinion of the court, was merely to distinguish between the remedy for want of consideration, and the remedy for cross demand—not to establish a principle of apportionment in a case involving the latter, between distinct securities for different parts of the original debt. The case did not call for it. It was indeed said that want of consideration furnishes a defence which is inherent in all the securities till full compensation for it be attained by defalcation; and so indeed it is, so far as to dispense with a certificate of balance where the amount to be defalcated exceeds the sum sued for. But it never was intended to be said that the security last put in suit should bear only a rateable proportion of the general abatement, though the failure of consideration was perhaps unknown when the preceding parts of the debt were recovered. Such a principle would involve either a failure of justice or a recourse to the very procedure which, it was attempted to be shown, the statute did not authorize—the finding of a balance for what is not a cross demand. The principle of pro rata distribution of defalcation for failure of consideration among all the securities, is one which this court did not mean to establish, and which the Judge ought not to have adopted.
Judgment reversed, and venire de novo awarded.