
    Daniel Smith vs. Thomas M'Masters.
    if tee plaintiff sue in the general jurisdiction of the circuit court, fot* a soto above the summary process, and it appear that the debt sued for has bees reduced by direct payments within (he summary jurisdiction, he can recover but sum. pro. costs; but if it be so reduced by discounting on the trial an independent demand, full costs are allowed.
    And where the plaintiff sued for a sum above the mm. pro. .jurisdiction, and it was reduced to 76 cents by the discount of an independent demand, yet the court allowed full costs.
    The plaintiffbrought his action by sum. pro. for about ‡ 48. The defendant pleaded a discount. On the trial of cáse, the plaintiff recovered seventy-five cents by a decree of the court. The clerk taxed against the defendant the plain-PifPs cost. A motion was made to set aside this taxation, which the court refused. The defendant appealed, on the ground, “ that the plaintiff was not entitled to any cost under the statutes of this State, unless he recover £20 old currency, or unless the action is brought to try the right to property. And that the defendant having established his discount could make no difference. At least no provision was made by law, for such a case.”
    Baushctt, for the motion,
    refered to the act of 1747 (1 Brev. Tit. Costs.) He said, the only condition on which the act gives the plaintiff tllfe right to recover- costs is the amount which he recovers. The discount law was silent as to costs.
    
      Caldwell contra,
    cited Hill vs. Williams, 2 Bay Rep. 443.
   JoiinsoN, J.

The principle involved in this Case has been settled in the case of Levy vs. Roberts, 1 M‘Cord 395. The rule there laid down is, that if the plaintiff sue in the general jurisdiction for a sum exclusively within it, and it appear that it has been reduced by direct payments within the summary jurisdiction, he shall recover only summary process cost, but if it be so reduced, by discounting an independent demand, he shall recover his costs. The same rule is also laid down in the case of the Cambridge Association, vs. Nichols, (1 Rep. Const. Court, Tread. Ed. 121) and the reasons on which the court proceeded in those cases are, that as in the former case, of direct payment, the Plaintiff must of necessity know the precise amount, and might therefore accommodate his action to the jurisdiction to which it belonged by such deduction; and in the latter might be ignorant of the amount, and the defendant having the election to discount it or not, it would be unjust not to allow the costs of that jurisdiction to which the plaintiff was driven by necessity.

This reasoning applies with equal force to the present case. The debt claimed by the plaintiff was sufficient to carry costs- Ho could net know that the defendant would elect to discount his demand. He was driven, therefore, to this action.

But .it is objected that the act of 1747 (1 Brev. Tit. Cost.) is imperative, that the plaintiff shall not have his costs, unless he recover £20 currency, except in the cases therein excepted.

The question then arises wliat is the amount which the ■Plaintiff has recovered in this case? Nominally only 75 cents, but substantially the whole amount of his demand. The discount of the defendant is in nature of an action against the plaintiff in which the defendant; recovers that amount which when set off against plaintiff gives the bailarme; and in this view the terms of the act have their literal effect; and this is, probably, the true theory of the rule laid down in the cases referred to.

The generally received opinion of the profession, and .the practice of the courts, aie in accordance with this view of ■the subject.

Motion refused,

Bauslcett and Dunlap for the motion,

J. J. Caldwell contra.-  