
    
      Otto Schweizer vs. Albin Weiber.
    
    “Where the goods of plaintiff have hecn wrongfully taken by defendant and destroyed by fire whilst in his possession, plaintiff cannot waive the tort and sue in form ex contractu.
    
    Damages which defendant may be entitled to recover in trespass or trover, are not the subject of discount.
    
      In the City Court of Charleston, July Term, 1852.
    The report of his Honor, the Recorder, is as follows :
    “ This was a summary process on an account about which there was no dispute. The defendant interposed a discount for the value of two silver watches, estimated at $46. Upon the admissibility of this claim set up by way of discount, the only question in the case arose. The facts developed by the testimony in support of the discount, as far as they seem pertinent to the decision of the question of law raised by the defendant’s appeal, were substantially these : that the defendant in this case was the owner of two certain watches, which had been left by him in the hands of a certain third party, a Mr.-•, a watch-
    maker, for sale or repair; the present plaintiff, it appears, had a judgment against this party, and that under a writ of fi. fa. sued out thereon, the sheriff of Charleston district levied upon the entire contents of the shop, took possession, and locked it up. There was some evidence going to show that this defendant was present at the levy, and notified both the sheriff and the plaintiff in this case, who was also there, that there were two certain watches in the shop, which the defendant pointed out and claimed as his property. This last fact of notice, though perhaps not fully made out by the evidence, may be considered as assumed by the Court, in deciding to reject the discount. It was also in evidence, that a fire had taken place the very night after the sheriff had taken possession, and the contents of the shop destroyed. Some arguments were drawn from particular circumstances connected with the fire, as it was thought, going to show the liability of the sheriff or of the plaintiff, or both, for the value of the two watches of the defendant. I did not consider it necessary to go further into the investigation ; it was clear to my mind, that if the plaintiff was at all, or could be made liable to the defendant, under the circumstances, for the value of the two watches, the claim was founded in tort, and could not be made the subject of discount under our law. The defendant’s counsel relied mainly upon the case of Cooke vs. Rhine, 1 Bay, 16; on the authority of the later cases, that of Mitchell ads. Gibbes, 2 Bay, 351, and Johnson vs. Wideman, Rice 325. I held that torts and trespasses are not the subject matter of discount under our discount Act. I quote from the latter case : “ it has been decided that torts and trespasses are not the subject matter of discount.” Mitchell ads. Gibbes, 2 Bay, 351; in that case, the Judges said, “ the discount law never meant that torts, trespasses, or unascertained damages, should be set-off; that it contemplated debts, dues, and demands of a pecuniary nature, or something springing out of a contract, or where there were mutual covenants which depended one upon the other.” So in Lightner ads. Martin, 2 McC., 214) Judge Nott said, “ a set-off means a counter demand tvhich the defendant has against the plaintiff, and although our set-off law is very comprehensive in its terms, (embracing every cause, matter or thing,) yet it has always been restricted in its construction, to demands arising on contract: damages arising from slander, assault and battery, deceit, and other cases sounding merely in damages, have never been considered the subject of set-off.” A deceit is a tort, arising, it is true, out of a contract, but the damages are unascertained, and are to be measured entirely by the discretion of a jury, and therefore, cannot be set up as a discount. I would refer also to a note on this subject in Rice’s Law Reports, page 219. The discount was rejected.”
    The defendant appealed on the ground, inter alia,
    
    1. Because under our discount law the value of goods wrongfully taken may be set up as discount to the demands of a plaintiff, whenever in the nature of the case, the defendant may waive the tort, and sue for the same in assumpsit.
    
      Pope, for the motion.
    It is not contended, in this case, that torts and trespasses may, under our Act, be the subject of discount or sehofF. But we do not contend that this is a case in which the tort may be waived and the action brought in form ex contractu. Cited Lindon vs. Hooper, Cowp. 419.
    
      Siegling, contra.
    Before a party can waive the tort and sue in assumpsit he must show something more thanhasbeen shown in this case — a mere tort. It may not be necessary to show that the tort-feasor has sold the goods, but it is necessary to show that he has derived some pecuniary advantage from the tortious act. Cited Moses vs. Macferlan, 2 Bur. 1010 ; Bennett vs Francis, 2 B. & P. 554; 2 Ld. Ray. 1216; ICingvs. Leith, 2 T. R. 144; 2 Phill. Ev. 110 ; 2 Green. Ev. § 226; 12 Pick. 124; 15 Pick. 285; 19 Pick. 217; 5 Greenl. R. 319 ; 2 Scammon, 317; 22 Verm. 624; 1 A. K. Marsh. 83; 3 Watts, 277; Ryan vs. Marshy 2 N. & McC. 156 ; Ford vs. Caldwell, 3 Hill, 248.
   The opinion of the Court was delivered by

O’Neall, J.

The only ground of appeal relied upon in the argument of the defendant’s attorney is the first.

The proposition contained in it, is I think true ; but the case made cannot be governed by it. For there is nothing which will enable the defendant to waive the tort, and proceed for the proceeds of the property, ex contractu.

If the watches seized wrongfully, had been sold, then the defendant might have waived the tort, and claimed the proceeds as money had and received to his use.

But this was not the case here. For the watches seized were destroyed by fire. If the defendant’s right of property was improperly invaded, his only remedy is trespass, or trover; and no one can now contend, that damages, to which the defendant may thus entitle himself, are the subject of discount.

The cases cited by the Recorder, puts the matter to rest.

The motion is dismissed.

Wardlaw, Frost, Withers, Whitner and Glover, JJ., concurred.

Motion dismissed.  