of Cowsar v. Wade , 4 S.C.L. 291 ( 1809 )

Motion from Lancaster district, to set aside a verdict, and reverse certa;n decisions of Brevard, J. The following points were resolved by the court. 1. Where (lie defendant gives notice of a discount, and at the trial, proves a cross demand, which overreaches the plaintiff’s cause of action, or the amount proved by the plaintiff, he shall be entitled to a verdict for so much as appears to be fairly due him, although the notice of discount may not expressly pray judgment for the balance due to him on the discount. So ruled in the case of Sumter v. Welsh. (See 1 vol. 539.) 2. Upon such a verdict for the defendant, he shall be entitled to costs. 3. Although an executor, plaintiff, is not liable to pay costs, yet on such a verdict he shall be liable, because the discount is in nature of a cross ac-tio, in respect to which, the executor in this case was defendant. 4. On such a verdict for the defendant, he shall have lull costs, notwithstanding the balance in his favor may be under $30, if his whole demand, by way of discount, be really above the summary jurisdiction of the court, and is reduced by the plaintiff’s action. 5. In such case the defendant’s attorney is not entitled to demand the fee for special matter and argument, on both the plaintiff’s and defendant’s demands, but only one fee of 25s. for special matter and argument. 6. The charge of Is. for; registering judgments, must be collected by the attorney of the plaintiff, and not by the clerk ; and the clerk is not bound to send the money with the transcript of judgments, unless he has received it. As soon as he receives the money, he ought to send it; and the charge of Is. for such registry of judgments, may be taxed in the bill of costs against the defendant. See Faust’s edition of P. t. 1 vol. 33.

Note. By the English law of set offs, if the demand pleaded as a set off over-goes the plaintiff’s demand, a new action must be brought by the defendant for ■file surplus. 3Esp. Rep. 104. Richardson, for the plaintiff. Blanding, for the defendant. Richardson took nothing by his motion.