
    Shiel vs. Randolph.
    Where the defendant sets up a discount, and pays the balance of plaintiff’s claim into court, the plaintiff ha ving refused to receive it before suit, if the jury allow his discount they may find for the defendant, and thereby cause the plaintiff to pay costs.
    The plaintiff sued Randolph on a note, who set up a part deficiency in the consideration, and had tendered the balance, after deducting for the deficient article. Plaintiff refused to receive it, and commenced his action. On the trial after the jury had been charged and had left the box, the court permitted the defendant to pay into court the balance he had tendered, and the court sent the clerk’s certificate of the payment to the jury in theirroom. The jury, allowing the defendant’s discount for the deficiency, found a verdict for him. The plaintiff appealed.
    
      O'1 Hanlon, for the plaintiff, moved for a new trial.
    
      Brickell, contra.
   Curia, per

Nott, J.

(After considering some minor points in the case.) But there is another view of the case, which is well worthy of consideration. The defendant offered to pay the full amount of the note, claiming a deduction to which he thought himself justly and legally entitled, so that the only question before the court was, whether the defendant was really entitled to that deduction or not. And why may not a defendant in every case where he claims a discount or set off, tender the amount actually due, and pay it into court when the plaintiff refuses to accept, and let the event of the cause depend upon that question. If the defendant succeed, let the plaintiff take the money and pay the costs of the action; if the plaintiff prevail he will of course be entitled to costs. Such a practice is perfectly within the spirit of our discount law, which is intended to prevent a multiplicity of actions. I think it would be attended with convenient and salutary consequences, and I am not aware of any principle of law opposed to it. There is nothing more unreasonable than that a defendant who has succeeded to the whole extent of his defence, should nevertheless be subjected to the payment of costs — and that is really the whole matter in controversy now. The defendant has established his defence, and the question is, whether he shall not pay the costs, which in all probability are equal to the deduction which he has obtained. But in any event, if the jury have decided correctly with regard to the principal question, of which the court will not attempt to judge, justice has been done, and the court will not be anxious to ascertain whether there may not be some technical rule of law by which a new trial can be granted contrary to the justice of the case. But suppose a new trial should be granted upon payment of costs, nothing would be gained but another opportunity of litigating a question, which as far as we can see, has been correctly decided.

New trial refused  