
    William H. Gibbes against William B. Mitchell.
    
      Charleston District,
    
    
      1802.
    
    Torts and lrespasses,&e„ are not discountable under our discount law ; only money transactions or mutual accounts, &e.
    And where torts, &c. are blended with accounts and money matters, the court will oblige a defendant to dicriminate between them in an affidavit to put off a cause on account of absent witnesses, that it may appear that the defendant intends to support by them , only such parts of his demand as are legally discountable ; otherwise the plaintiff may proceed and go on with his
    ■MOTION for new trial.
    This was an action of debt on bond, tried at Colleton district, before Bay, Justice.
    It appeared that this bond had been given for the purchase of a number of negroes, and that the defendant had given a mortgage upon them to secure the consideration money. After the expiration of the time for payment, the money being unpaid, the plaintiff, Gibbes, went to the plantation of the defendant, and took away a number of the negroes mentioned in the mortgage, and sold them towards satisfaction of his debt; but as the proceeds did not pay off his debt, he went on for the balance unpaid upon this bond.
    To this action the defendant pleaded a very large discount ; 1st. For entering his plantation, and forcibly taking away a number of negroes; 2d. For consequential damages, occasioned by the loss of their labour, and the failure of the crop ; and, 3d. For money had and received to defendant’s use, arising from the hire and labour of those negroes while they remained in his possession, and for other damages mentioned in the discount.
    When the cause was called in the order of the docket for trial of issues, the defendant produced an affidavit to postpone it; in which it was stated, that he had one or two material witnesses absent, who had been subpcenaed but did not attend, and without whose testimony he could not safely proceed to trial, or be able to substantiate the articles in his discount.
    Mr. Ward, for plaintiff,
    objected to this affidavit, as he alleged there were a great number of items in this discount, which in their nature were not discountable under our discount act; and that the defendant had not discriminated in his affidavit, which of the items he meant to substantiate by his absent witnesses ; for if by them he meant to piove trespass, or tort, or any matter sounding in damages, the cause ought not to be postponed on that account, as these did not come within the purview of the discount law ; Lut if he meant to prove money had and received, or any thing of a pecuniary nature, it did come under it; that unless the defendant would discriminate in his affidavit, and state particularly what he meant to prove, -he was not entitled to a postponement.
    Mr. Cheves, for defendant,
    insisted that trespass and tort, and consequential damages, came, within the meaning of the act, as well as money or any other pecuniary transactions ; and, therefore, the defendant was under no obligation to discriminate, as it is full and complete to the common intent of postponing a cause.
    But the presiding Judge (Bay) was of opinion, that all that part of the discount filed, which consisted of torts, trespasses, of matters sounding in damages, were all inadmissible under the discount law, although money had and received was so ; and, therefore, unless the defendant would discriminate, and point out what parts of his discount he meant to support by his absent witnesses, he was not entitled to a postponement of his cause ; which the defendant refusing to do, the cause was ordered on to a jury, who found a verdict for the plaintiff.
    This, therefore, was a motion for a new trial, on the ground that the judge had mistaken the law, in refusing to put off the cause.
    
      The same grounds were taken for the defendant on this motion, which had been urged for him at Colleton.
    
    Mr. Cheves, and Mr. Gaillard, argued, that all matters and things in right of the defendant, ought to be set off and discounted under the discount act; that it was so broad and comprehensive, as to include and comprehend, not only money transactions, but also every other right which a defendant was entitled to, or could recover in an action or suit at law.
    Mr. Ward, and Mr. Shnons, contra,
    contended, that the discount must mean money, or something springing out of the contract, where there were reciprocal covenants, but could never be construed to mean torts, trespasses or injuries, or unascertained damages, which were in their nature the subject of special actions, in order to ascertain the quantum of damages, which defendant was entitled to ; that the words of the act were sufficiently explicit, “ all accounts, “ reckonings, debts, matters, and things in defendant’s own “ right might he set offI” These, they said, must mean that all matters and things of a pecuniary nature in numero, might be set off. And chief justice Ellsworth had given this construction to the act in the federal court. And that the word “ balance” mentioned in the act, could refer to nothing else but money, because this was the sum which the act says the jury shall give their verdict for.
    If this, then, is the true construction of the act, the defendant was bound to discriminate in his affidavit, and shew which of the articles in his discount he meant to prove by his absent witnesses, as some were in their nature discountable and others not; and as he refused to do so, the judge acted regularly and legally in ordering on the cause to the jury ; and the verdict ought to stand as the cause had been very properly ruled on to trial.
   The Court was of opinion, that the judge in the circuit court at Colleton, was right in ordering on the cause to trial, unless the defendant had discriminated in his affidavit, and shewn which of the items in his discount he meant to substantiate by his absent witnesses. That the discount law never meant, that torts, trespasses, or any unascertained damages should be set off. That it contemplated debts, dues and demands, of a pecuniary nature, or something springing out of a contract where there were mutual covenants which depended one upon the other, and no other kinds of discounts had ever been offered or allowed of in our courts of justice ; otherwise, a variety of different and very opposite kinds of actions, or issues, might be blended together in the form of a discount, as slander, assault, trespass to freehold, and other cases sounding in damages only, which might perplex and harass courts and juries exceedingly, unless a proper line of discrimination was drawn. That the decision made in the federal court by the chief justice of the United States, was a wise and legal decision. That nothing could be discounted but money matters, and the term “ balance” made use of in the act, was a strong; corroborating proof of it, as that was the sum the jury was to find for the plaintiff; but the act goes still further, and says, that if the balance should be in favour of the defendant, then judgment shall be given for such sum as may be due to the defendant; which is a further proof of the intentions of the legislature, that money transactions only were alluded to in the act.

But as the practice on this point had never been before settled, and as there was in this discount a charge for money had and received, which came within the purview of the act, they thought it best in this case to allow a new trial, lest the defendant should be deprived of an opportunity of substantiating that part of his discount, which might work (if it was just) a manifest injustice to him.

Rule for new trial made absolute.

Present, Waties, Bat, Johnson, Trezevant and BREVARD.  