
    
      William Ellison, assignee of Geo. W. Smith, vs. Joseph McCullough.
    
    The defendant purchased land, giving for the purchase money two unnegotiable notes, both of which were afterwards, but at different times, assigned by the payee. There was a partial failure of the consideration for which the notes were given, but not equal in amount to the note first assigned. Held, that the defendant was bound to pay the note first assigned,-and could only avail himself of his defence in a suit on the other note.
    If both notes had remained in the hands of the payee, or had been assigned at the same time, the note first brought to trial would, in law, have had preference; semble.
    
    
      Before Wardlaw, J. at Greenville, Spring Term, 1845.
    This was an action of assumpsit, commenced on the 28th February, 1842, upon an unnegotiable note for $116, dated the 18th December, 1841, payable to George W. Smith, on the 1st. January, 1842, and assigned by Smith to the plaintiff, on the 19th December, 1841. The defence alleged, by way of discount, and as failure of consideration, was that this note was given in part payment of the price of a tract of land conveyed by Smith to the defendant, and that the defendant had been obliged to pay large sums to remove the liens of judgments against Smith, which 'bound the land. The plaintiff replied, that after payment of those sums, there was still due by the defendant of the price of the land more than enough to pay this note. There was a conveyance from Smith to the defendant, of ninety acres of land, with warranty, dated the 18th December, 1841, in which the consideration was expressed to be $700. It was admitted that the note in question was given in part payment for the land; and that another note for $350 was given at the same time, and upon the same consideration, which was also unnegotia-ble, and at the time of the trial was yet unpaid, in the hands of George Mattison, who became assignee after the 19th December, 1841. From Smith’s declarations, it seemed that he had also received in payment for the land, two horses, valued at $100, and two notes on one Brown-lee, each for $50. The defendant shewed that, in January, 1842, he paid to the sheriff, on judgments against Smith, which bound the land, $347-33. Smith ran away the next day after the conveyance of the land.
    The presiding Judge instructed the jury that, even if Smith was bound to remove the liens, no abatement of this note could be had, unless, by the payment of the judgments and other payments made towards the purchase money of the land, the defendant had paid so much of the purchase money that the balance unpaid was less than the amount of this note. Verdict for the whole amount of the note.
    The defendant appealed, and now moved for a new trial, on the ground of error in the instructions of the presiding Judge.
    Sullivan, for the motion.
    
      Young, contra.
   Curia, per Wardlaw, J.

If the two notes represent what was left unpaid of the purchase money, then the balance, after deducting from their sum the liens, is $118 67. If we go back and look to the payments of which any evidence has been given,.then $200 paid and the liens deducted from $700, the consideration expressed in the deed, will leave a balance of $152 67. Why should not this note be paid from either of these balances 7

The defendant objects that the note for $350* is outstanding in 'the hands of Mattison. Peradven ture payment of that note may never be claimed. But if it should be, this one was assigned first, and, therefore, is entitled to maintain the precedence which the priority of suit alone might give it. If both notes had remained in Smith’s hands, and this one had first been brought to trial, recovery upon it would have been had, and that recovery would have gone with the payments made upon the liens, to diminish the balance applicable to the other. If both notes had been assigned at the same instant to their present owners, equity might have apportioned between them the balance insufficient for payment of both, but probably the law would have applied the maxim, prior tempore potior jure. But this one having been assigned first, the other stands towards it as if it was still in Smith’s hands. If they were progressing pari passu towards- judgment, a defence which would not have availed against this when it was assigned, but which was available against the other in part or in whole when it was assigned, must have gone only against the other; much more must it now, when this has come to trial before the other has been sued. The most that the defendant can ask is, that the case should be considered as if he had, before the assignment of this note, made all the payments which the breach of warranty has since, as he says, subjected him to. If so, as those payments still left a balance sufficient to pay this note, the present plaintiff, as as-signee, has a right to insist that he should be paid from that balance, and that no conduct of Smith after the assignment to the plaintiff, nor of the defendant after notice of that assignment, shall defeat him. Motion dismissed.

Richardson, O’Neall, Evans, Butler, and Frost, JJ. concurred. 
      
       Broom’s L. M. 329.
     