
    John Manning v. S. Watson, survivor of S. & J. Watson.
    Damage in transitu is a good set-off to an action for freight.
    And delivery to, and acceptance by the consignee, does not alter the case. (Semble.)
    
    Any demand of the defendant, arising ex contractu, may be pleaded in discount; but not damages ex delicto.
    
    Before the Honorable the Recorder of the City Court of Charleston, November Term, 1839.
    Assumpsit for freight; to which was pleaded a discount for damage to the goods by leakage of the ship. The damage was not discovered till after the goods, which had been délivered apparently in good order, were unpacked. The jury found for the defendant’s discount, and thereby established a considerable balance in his favor.
    The plaintiff appealed, by motion for a new trial, on the ground,
    “That the amount of damage alleged’to be sustained by goods in their carriage, is inadmissible as a set-off in an action for freight, after delivery of the goods to, and acceptance of them by the consignee.”
   Cuo-ia, per O’Neall, J.

The plaintiff’s motion is concluded by the case of Ewart v. Kerr, (Rice R. 203.) But, apart from that authority, there could not be a doubt of the defendant’s discount being a proper one. It has long been the practice to allow the injury done to goods in transportation to be set off against the claim for freight. The defendant’s cross demand arises ex contractu,■ and, as such, may always be set up in discount under our law, (P. L. 246; 4 Stat. So. Ca. 76,) which admits “ any account, reckoning, demand, cause, matter, or thing.” If' the damages arise ex delicto, they cannot be so set off; and this distinction, if kept in mind, will prevent the profession from supposing that there is any conflict between the case of Ewart v. Kerr and that of Johnson v. Wideman, (Rice R. 325.)

See 10 Rich. 320. An.

Yecidon and Macbeth, for the motion;

Walker, contra.

Gantt, Richardson, Earle and Butler, JJ., concurred.  