
    Cooke against Rhine.
    Where ¿la-taages accrue by non-per-contract6 for* house"witMn a may, under our discount law, give dence against mand'^' for6" nnd^sendces'5 performed in
    See the act of loving'mutu-set-off1in'cli's6-each other "St
    ASSUMPSIT for work and labour, in rebuilding a nOUSC* _ i
    Mrs. Rhine, the defendant,
    having lost her house in one destructive fires which raged in Charleston a short before, or during the late war, applied to the plaintiff, Coolu who was a master-builder, for an estimate of the expense of rebuilding it; as also for an account of the time it would require before it could be completed ; which the plaintiff furnished her with, and an agreement was concluded between them accordingly. The plaintiff, however, delay-e¿ the work much beyond the time proposed, and charged more than the estimate delivered in; for which reason the defendant, by the advice of her friends, refused to pay what she conceived an extravagant bill; and against this bill filed a discount, for the loss of rent' she sustained by the plaintiff’s unreasonable delay, to the amount of 220/. sterling.
    Pringle, for plaintiff,
    objected to this discount. He argued, that the discount: law only extended to liquidated accounts, and not to matters sounding in damages, as in the Present case*' That if the defendant had sustained a loss by the plaintiff’s delay, she had her action, which was her proper remedy. In the present case, she had assessed her own damages, and decided that a breach of contract had been committed by the plaintiff; and even admitting a breach had been committed, it was a rule of law, that independent covenants could not be set off against each other. Loft. 198. Bull. N. P. 163. The par des must pursue their mutual remedies by suit. The breach of covenant on one side, is no excuse, and cannot be pleaded on the other. Doug. 665. In Coxvp. 56. it is laid down, that damage cannot be pleaded by way of discount. He next insisted, that to allow such kind of discounts to be set up, would tend exceedingly to coniuse juries, by intermingling a variety of issues. He quoted a case of Saxby v. Harvey, where a discount of trespass on lands was pleaded to debt on a bond, and overruled and rejected by the court.
    Pinckney, contra.
    Our discount law is much more extensive, and embraces a greater variety of cases, than the English act of parliament for setting off mutual debts. That act narrows down the grounds of set-off, to mutual debts only ; whereas our act of assembly, permits any cause, matter, or thing, in the defendant’s own right, to be set off, There is, therefore, a wide difference between them ; and for that reason, few of the adjudged cases, in England,, will apply here. The cases cited, he admitted, would be good law in Westminster-Half but not so in South-Carolina. As to sending different issues to the jury, it is every day’s practice so to do. When an account is pleaded in discount. to a note or bond, the jury arc obliged to judge of the value of the goods ; this, then, is an unliquidated demand. But what makes it proper to suffer this discount of the defendant’s to go to the jury is, that it is a matter springing out of the very contract itself on which the plaintiff has commenced his action. It is connected with it. The contract was, that the work should be done at a certain price, and within a fixed period; but it was not done within the time limited,, consequently a loss accrued to the defendant by this delay; for rents, in the year 1783, were extravagantly high. The great question, therefore, for the consideration of the cou'rt is, shall the defendant deduct the loss sustained, out of his, the plaintiff’s, demand against her, or shall she be turned round and compelled to bring her action? Certainly the former remedy is preferable,, It is a short and effectual way of doing justice between the parties, to suffer the whole case to go to the jury. To refuse it, would he doing justice by halves. It would be garbling the cause, create delay, tend to multiply law suits, and increase expense. This case, he urged, cannot be assimilated to that where trespass was pleaded to a bond. They are two distinct things, and no wise connected with or relating to each pther.
   Burke, J.

thought that the admission of the doctrine contended for by the defendant’s counsel, might have a tendency to introduce different and very opposite issues, which might embarrass both courts and juries exceedingly; and accordingly charged the jury to reject the discount.

Heyward, J.

was of a different opinion, and thought it a very proper matter for the consideration of the jury in this case.

Grimke, J.

concurred with him; observing, that this was a case of considerable importance ; and although the doctrine might be very extensive in its operations and consequences, he thought it would be at all events beneficial, in preventing a multiplicity of law suits. He had not a doubt remaining on his mind, but that the discount law of the state embraced the case before the court, and was, therefore, clearly for admitting the discount to go to the jury.

The parties then went into the examination of witnesses, and abalance was eventually found forplaintiff, to the amount of 79/. after allowing a sum for the loss of rent occasioned by the delay in not finishing off the house.  