
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1810.
    James Orr, Indorsee, v. Foot and Garner.
    If the plaintiff sue by petition and process, within the summary jurisdiction of the court, the defendant will not be permitted to set off against the plaintiff’s demand part of a cross demand, the whole of which is not within the summary jurisdiction of the court. But the court may, in such case, stay proceedings on the summary process till the cross action can be tried.
    Motion for a new trial. Summary process on a promissory note, tried in Union district, before Brevard, J. The note in question was made by the defendants, payable to one Garner, by whom the same was indorsed to the plaintiff. The defendant gave notice of a discount, and offered in discount as much of a certain other note of hand as would be sufficient to satisfy the plaintiff’s demand ; that is to say, part of a promissory note made by the plaintiff, and William Brice, for $90 ¡«2, payable to William Johnson, and indorsed to the defendant. Both notes were several, as well asjoint, and both had become due before indorsement. It was objected, at the trial, that the note offered in discount, being for a'sum exceeding the jurisdiction of the courf by way of summary process, it could not be received in evidence. This objection the court sustained. And the judge said, that the defendant could not divide, or reduce his cause of action, so as to bring any part, or the balance of it, within the summary jurisdiction of the court. That the discount law was a wise and beneficial law, calculated to restrain the spirit of litigation, and save expense; but that the present case did^tot come within its scope and policy ; for that the discount, if allowed, would not avoid the' necessity of another action for the balance of the note, on which the defendants proposed to set off so much as would extinguish the plaintiff’s claim. The defendants could not claim a judgment for the residue; for if they did, they would evidently claim a recovery of the whole sum due on the note, which was above the summary jurisdiction of the court.
    The motion in this court was argued ,the 4th of May, 1810, by Johnson, for defendants, and Gist, for plaintiff.
    Johnson
    cited 2 Burr. 1229, Baskerville v. Brown.
    Gist
    cited Moses v. M’Ferlan, 2 Burr. 1005.
   Grihke, J.,

delivered the opinion of the court, confirming the opinion of the District Court,

Note. But if the defendant had brought suit on his demand, on motion setting forth the facts, the court would probably stay the proceedings on the summary process till the cross action could be tried.  