
    Duncan Lawrin for James Dove, vs. Nathan Hanks.
    A plaintiff may, at any time before the verdict is read-by the clerk, submit to a nonsuit, anda defendant who pleads a discount, may, under the same circumstances, discontinue or withdraw his discount.
    The defendant offered in evidence, by way of discount to the plaintiff’s demand, (which was admitted) two accounts amounting to one hundred and sixteen dollars, fourteen cents. After the jury had been charged, and had returned into court with their verdict, and before it was offered to the court, the defendant’s counsel moved for leave to withdraw his discount from the jury, with a view to discontinue the same, — which motion the presiding judge refused.
    The defendant’s counsel now moved the court of appeals to reverse this decision, and for leave to enter the order and discontinue the discount to the plaintiff’s demand.
    
      
      Ervin for the motion.
    The defendant in putting in his discount; stands, as to the discount, as plaintiff in the action, and may withdraw it whenever he please. The plaintiff may take a nonsuit after the jury have returned, the verdict not being yet published, and the right to withdraw a discount must be the same.
    
      Evans, contra.
    The discount is in nature of a plea. But the plea cannot be withdrawn after the jury have found their verdict, although not yet published.
   Colcock, J.

There can be no doubt that a plaintiff may, at any time before the verdict is read by the clerk, submit to a nonsuit; and a defendant who pleads a discount is, as to that, considered as if he had brought his action. The olr-ject of the act was to prevent unnecessary litigation, and thus to enable a defendant who had a demand against one who should sue him, to recover it, without the necessity of a cross action. What reason then can be urged why a defendant in such a case should not as well be permitted to withdraw his action, as a plaintiffs It does not embarass the plaintiff. If the discount is withdrawn, he goes on to recover his whole demand. In the case before us, the court should have granted the motion, and directed the jury to find for the plaintiff the full amount of his demand. — A new trial is therefore granted, unless the defendant be permitted to withdraw the discount, and endorse on the back of the record that it is so withdrawn.

Ervin for the motion,

Evans contra.  