
    John Russell ads. Edward Rogers.
    Where a plaintiff sues on a demand, bearing interest, and defendant gives in evidence a discount, which does not hear interest, the plaintiff is entitled to calculate interest on his whole demand, up to the time of the verdict.
    
    This case was tried before Mr. Justice Johnson, at Camden, in November Term, 1816.
    The facts were these; the defendant, who was a merchant, gave the plaintiff a promissory note, on which this action was founded. It was credited with the amount of the plaintiff’s store account with the defendant, for the years 1809, and 1810, and the defendant now offered in evidence, as a discount, the plaintiff’s store account with him, for the years 1811, and 1812; but there was no evidence of any express agreement that this account was to go in payment of the note. If the accounts for the last two years were passed to’th'e credit of the note, at the time the goods were delivered, or at the end 'of each year, the note was wholly extinguished, and a small balance would *have remained due to the defendant; but the presiding Judge, directed the jury to ealeulate the interest on the note up to the time of the defendant’s filing the discount, which left a small balance due the plaintiff, for which they found a verdict.
    A motion was now made for a new trial, on two grounds:
    1. That there was sufficient evidence, that the goods were received in the payment 'of the note.
    2. That when a discount is offered, that does not bear interest against a demand that does, the application of that discount ought, by relation, to be made at the time the plaintiff became indebted.
    
      Blanding, for the motion. Levy, contra.
   The opinion of the Court was .delivered by

Johnson, J.

The first ground suioposes, that there was sufficient evidence to warrant the inference, that the goods' delivered in 1811 and 1812, were received in payment of the note ; from which it would necessarily follow, that the note was wholly extinguished, and that the defendant was entitled to a verdict. There was no evidence of any express agreement to that effect, and the only circumstance relied on to support the position, was, that the plaintiff had passed the defendant’s store account against him, for 1809 and 1810, as a credit on the note. I think, therefore, that the conclusion is not warranted by the facts. If that circumstance alone would warrant such an inference, the admission of a part of a demand might, with the same propriety, be considered as an admission of the whole, which is certainly not warranted by principle or rule.

2. I was of opinion at the trial, and so charged the jury,- that as the plaintiff’s demand was of that character in which they were bound to allow him interest, and as ¡the defendant’s demand or discount was not of the character which did carry interest, unless they should be of opinion that the facts justified the conclusion that the plaintiff received the goods delivered *in 1811 and 1812, as payment, they ought to allow the plaintiff interest up to the time of the filing of the discount. I did so, because I then thought that the .discount might be considered as a quasi tender of payment to the plaintiff in his own coin ; but I yield with great pleasure to the unanimous opinion of my brethren, that the plaintiff was entitled to interest on his demand.up to the time of the verdict. The plaintiff, as I before observed, was entitled to interest on his demand, and the discount set up by the defendant was regarded as a discount, and not as a payment; an independent unliquidated demand, which did not carry interest. The principle of this question, I am informed, has been before decided by this Court, in the case of McDonald v. Ramsay, in Charleston, of which I was not informed, not being then on the bench.

I am of opinion, therefore, that the motion ought to be dismissed; for although the Court erred, it was against' the plaintiff, who has not appealed.

Colcook, Nott, Cheves, and Gnatt, JJ., concurred.

See 4 Uicli. 606. 
      
       3 Brev. 379 ; 1 Tread. 421.
     