
    
      Mitchum v. J. P. Richardson, Same v. Griffin.
    
    If a plaintiff’s demand, shown to have been properly within the jurisdiction of the Court, has been reduced by discount, he is entitled to have his costs with any sum he may have recovered, however low.
    The defence of partial failure of consideration by reason of deficiency in an article sold, can, in an action on a note for the price, be made only by way of discount or cross action: and such defence may be made by either principal or surety in the note, or by both, according to the form of the plaintiff’s suit.
    2Rich.49,564.jt
    
      Before Evans, J. at Sumter, Fall Term, 1847.
    
    These were two Sum. Pros, on, the same note, for twenty dollars and interest, which was given for a horse. The de-fence was, that the horse was unsound on account of blindness. The Court decreed for the plaintiff ten dollars. These cases were tried at some former Court, and the question submitted to the Circuit Judge was, whether the plaintiff was entitled to tax costs on this decree. His Honor ruled as follows : “In the cases of Vaughnv. Cade, and Goodmian ads. Leak,it decided that, when the plaintiff’s demand is reduced by payments, to a sum within the jurisdiction of a Magistrate, the plaintiff is not entitled to costs ; but all the cases recognize the exception, that when the amount of the demand is reduced by a discount below the jurisdiction of the Court, the plaintiff shall still have his costs, because this is a cross action. In the case under consideration, the de-fence was a partial failure of consideration; which could only be allowed as a discount; and although it may be there was no notice of discount, yet it must have been under the belief that there was, that the Court allowed the defence, and I am of opinion the plaintiff is entitled to his costs. The Court must look to the real case as made. In Vaughn v. Cade, there was.a notice of discount, but the Court did not regard that circumstance, as the case made was one of payment and not of discount.”
    The defendants moved the Court of Appeals to reverse the decision of his Honor, on the following grounds:
    1. Because the Court which pronounced the decree for f 10 was without jurisdiction.
    2. Because the plaintiff having failed to recover more than £20 current money, was not entitled to his costs of suit.
    8. Because no discount was in fact filed, and in no point of view could discounts have been filed in both cases — -if the horse was sold'to one of the defendants (which the testimony shewed) then the other had no right of cross action — if to both, then neither separately had such right.
    
      Richardson, for the motion,
    
      Moses, contra.
    
      3 g b ^g ( n. & McC. 312.
    3 McC. —
   Wardlaw, J.

delivered the opinion of the Court.

The decree in each case is for $ 10; and no discount is found in the proceedings. If nothing more appeared, the decrees would be unavailing for the plaintiff, for they would serve only to shew that his demand was below the jurisdiction of the Court, as the verdict in the case of Owens v. Curry (just decided) served no other purpose.

It is however stated in the report that the defence was unsoundness of the horse for which the note sued on was given, and the decrees shew that a partial failure of the consideration must have been established by the proof, if the plaintiff’s note was proved. The case has been argued in this Court with a full admission that the plaintiff's note was proved, and that the defence was as has been stated; and it has been contended that from all this no inference arises that the existence of a discount must have been presumed by the Judge who rendered the decrees, because a defence shewing partial failure of the consideration is not a discount or cross action, but is (without notice of discount) proper by way of recoupment or reclamation; and because there could not properly have been discounts in both cases, if there could have been in either.

However, the case of Parker v. Pringle, recognizing our practice as laid down in Farrow v. Mays, shews that in all cases where the contract of sale is not at an end (and it never is so where the purchaser retains the article sold and complains of only partial failure of the consideration by breach of the warranty,) an abatement of the price for deficiency of the article can be had only by way of discount or cross action. Such a cross action arising from the contract which formed the consideration of a joint and several note signed by principal and surety, may be urged by either of them when sued separately on the note, or by both when sued jointly :— for according to the form in which the plaintiff sues, will either or both of them appear to be tlie party with whom he contracted.

The decree for $10 could not then have been rendered unless the plaintiff’s demand had been reduced below $20 by a discount. The case of Smith v. Masters shews that a plaintiff, whose demand, shewn to have been properly within the jurisdiction of the Court, has been reduced by discount, is entitled to have his costs with any sum he may recover, however small.

The motion is dismissed.'

Richardson, J. — Evans, J. — and Frost, J. — concurred.

O’Neall, J.

dissenting. In these cases I do not think the ' plaintiff was entitled to costs. The decree is for $10. That is a sum less than under the Act will carry costs.

The notion, that we are to presume that this decree was given for $10 after allowing a discount in favor of the defendants, is to me new. I have always thought that a record is to be judged of by inspection. Whatever is found in it is regarded as thereby verified. A matter not appearing is regarded as non-existing.

There is no discount on file — -there is' nothing in the Judge’s decree which shews there was a discount. It is true, the defence was that the horse, the consideration of the note, was blind; — that was a total failure, if indeed it was, at all, a failure of consideration. There was no necessity to give notice of a discount to let in such a defence. 1 know that in Farrow v. Mays it was ruled that a partial failure of consideration could only be given in evidence under a discount. For many years that decision was closely followed. But for the last twenty, I have rarely heard of a discount in such a defence. The party generally alleges a total failure, and proves what he can, under the general issue, and a verdict is found, in the whole, or in part, as the facts seem to justify. It may be added, how can this plaintiff be entitled to costs, if the principles ruled in Owens v. Curry be correct 1 Here the plaintiff has only recovered $10; — there he recovered $18. In that case he is non-suited. In this he is allowed costs. Both ought to be judged by the records. There is a discount in neither.

Withers, J. — concurred.

Motion refused.  