
    
      Oliver Simpson ads. A. J. Knox. Same ads. Same.
    
    1. The court will not deprive a plaintiff, suing within the summary jurisdiction, of his legal right of having his judgment the first court, by compelling him to file a declaration, in order that the defendant may plead a discount beyond that jurisdiction, unless great and manifest injustice would be done by a refusal of the motion, or when the law prohibits the defence from being tried in the summary jurisdiction. Vide Beckham vs. Eccles Peay, 1 Bailey, 121.
    2. Questions of this kind must, of necessity, be addressed to the discretion of the circuit court.
    3. A plaintiff having brought suits within the summary jurisdiction, a motion was made by defendant to compel him to declare, in order that defendant might plead a discount beyond that jurisdiction, on a demand already sued on, to the same Term, with the cases of the plaintiff; but as there was no satisfactory proof of the insolvency of the plaintiff, and as the court was not satisfied with the merits of the defence, but was inclined to the opinion that the object was delay, it was held that the motion was properly refused. 1
    
      Before Evans, J. Edgefield, Fall Term., 1843.
    The plaintiff and defendant had each brought actions of assumpsit against each other, returnable to this Term ; and Knox had sued Simpson on two notes within the summary process jurisdiction. One of these notes, on the face of it, purported to be given on settlement, and the other for money loaned. Simpson’s counsel made a motion to have the plaintiff declare on these notes, in order that he might plead in discount his demand, for which he had already brought his action. This was refused: 1st, because the presiding Judge thought it likely, from the fact one of the notes was given on settlement, and the demand which he wished to set off was of a date, anterior — that the object wras delay. 2. That he might, if he chose to discontinue his action, set off his account against Knox’s action in the higher jurisdiction; and 3d. That he had elected to proceed by a separate action.
    The defendant appealed from the decision of his Honor, the presiding Judge : Because his Honor erred in deciding that the plaintiff should not be required to declare on his cases, notwithstanding the defendant’s discount, inasmuch as the defendant had commenced his action against the plaintiff in the higner jurisdiction of the court, and therefore could not be allowed to discontinue the same, so as to rely upon his claim by way of discount.
    Gray, for the motion. Yancey, contra.
   Curia, per

Evans, J.

This is not a case involving the right of the defendant to have several actions brought against him by the same plaintiff, consolidated into one. The application is to compel the plaintiff to file a declaration, in order that the defendant may plead a discount for a sum beyond the summary process jurisdiction of the court. Where the plaintiff’s demand is under twenty pounds sterling, he may have his judgment the first court. This is an advantage which the plaintiff has, arising out of his contract, and one of which the court will not deprive him, except in those cases where the law prohibits the defence from being tried in the summary process jurisdiction, as where the title to land is involved, or where great and manifest injustice would be done by the refusal of the motion. The case of Beckham vs. Eccles & Peay, 1 Bailey, 121, is an illustration of the ground on which the court will interfere, and deprive the plaintiff of his legal right to have his judgment the first court. In that case the court was fully satisfied of the merits of the defence, and that the plaintiffs were insolvent, so that unless the defendant could set off his demand against the plaintiffs’s action, great and irreparable injustice would be done to him. The court say, “Justice ought not to be so perverted, and so long as the court can exercise any discretion, it ought not to be so perverted.” Questions of this kind must, of necessity, be addressed to the discretion of the circuit court; but if not properly exercised, that court will be controlled by this, as was done in the case above cited.

In this case none of those strong reasons existed which influenced the decision in the case of Beckham vs. Eccles & Peay. No satisfactory evidence of the insolvency of Knox was offered. The court was not satisfied of the merits of the defence, but was inclined to the opinion the object of the motion was delay. Besides this, the defendant had decided for himself, by electing to bring his action.

This court does not perceive any sufficient reason for disturbing the decision of the circuit court, and the motion is dismissed.

Richardson, Q’Neall, Butler, Wardlaw and Frost, JJ, concurred,  