
    John Brown, surviving Admimistrator, v. James C. M’Mullen & Hugh M’Mullen.
    
      Before Mr. Justice Martin, at Chester — Fall Term, 1832.'
    Assumpsit on a joint and several note,, given by the defendants, for a mare and colt, purchased by the fendant, James C. M* Mullen, at a sale made by plaintiff and his co-administrator, (since deceased) their intestate’s estate. About the time the note fell due, an action of trover was brought against C. M’Mullen, by one Carter Estis, for the recovery the mare and colt; and about the same time this action was brought for the purchase money. The sent plaintiff was vouched to defend Ml Mullen’s title, m the action oi trover, and he employed counsel m that case. A verdict was obtained against M’Mul-m len, for the value of the property, and judgment tered for the amount of the verdict, and costs; but it remains unpaid. James C. W’Mullen filed his notice of discount for the amount of the judgment, in-binding costs: and, this exceeding the amount of the note sued on, he claimed a verdict for the excess. — ■■ The defence was objected to, on the grounds that the record was between different parties ; that the matter of discount had arisen since the commencement of this action, and that the judgment was not paid.— His Honor overruled the objections. The plaintiff' then proposed to prove that James C. M’Mullen had a good title to the mare and colt: the Court ruled that the plaintiff was concluded by the recovery in the cape of Estis v. M’Mullen, and refused to receive the evidence. The plaintiff then agreed to submit to a nonsuit, with leave to move to set it aside. And he accordingly, now moves this Court to set aside the non-suit on the grounds : First, that the Court erred in excluding the proposed evidence. Second, that the discount was inadmissible, inasmuch as the verdict was not between the same parties, it was not paid, and the matter had arisen since the commencement of this suit.
    
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      Clinton, for the motion.
    Clarke, contra.
   Johnson J.

The evidence tendered by the plaintiff, and rejected by the Court, went directly to shew that, notwithstanding the recovery by Carter Estis against James C. M'Mullen, and notice to the plaintiff, of the pendency of that suit, and his having come in to defend it, the right of property in the mare and colt was in him, and not in Carter Estis. The identical question which had been tried and adjudged in the former case. According to Allen and Roundtree, decided May Term, 1832; and Wilbourne v. Davis, during this term, that evidence was properly rejected, because it could have availed nothing.

The second ground has altogether mistaken the character of the defence. A discount, properly speaking, is of some cause, matter, or thing not necessarily arising out of, or connected with the cause of action. The defence here, is that the defendants are not liable, because the consideration of the note has entirely failed, and such is the proof. The mare and colt, the consideration, was recovered from defendant, by title paramount to the plain tiff’s: it is, therefore, of a matter necessarily between the same parties;' in point of time, if that was material, co-existent with the cause of action ; and whether the defendant had satisfied Estis’ judgment or not, was wholly immaterial.

The defendants have not recovered the costs of the case of Estis against James C. M'Mullen, and, therefore, their right to recover them cannot arise here.

Motion dismissed,

O’Neall, J. concurred.

Harper, J. Absent. 
      
      Ante. 278
     