
    
      R. S. Bailey vs. S. A. Godman et al.
    
    Special plea, on which issue was joined and to which no objection was taken until after the evidence was closed, treated as notice of discount, or notice of partial failure of consideration.
    A case is never sent back about a form where the party complaining has not taken the proper steps to test the form.
    
      Before Wardlaw, J. at Laurens, Extra Term, July, 1851.
    Debt on two notes under seal, for $500 each.
    
      Special Plea. That the notes were given in part payment of the price at which defendant G. had bought from the plaintiff the printing press, type, subscription-books and good will of a weekly newspaper, called the Laurensville Herald: that the plaintiff fraudulently represented the subscription list of the paper to contain 600 subscribers, when, in fact, there were not more than 400, and made other fraudulent misrepresentations, (which are specified,) whereby the defendant was deceived and induced to buy, at the excessive price of $>2,400.
    A replication denied deceit in the sale, and issue was joined. Evidence was given to sustain the defendants’s plea. The principal facts which it was attempted to shew, were, that plaintiff represented the number of subscribers to the paper to be six hundred, when, in fact, there were but five hundred.
    The reputation of the paper was very much raised, and its circulation enlarged, while Godman owned it. About the end of 1850, he sold it, with all materials and all accounts due to the office, for $4000 — guarantying that there were 1,500 good subscribers, the actual number being greater.
    
      “ In the last speech made for the plaintiff,” his Honor said in his report, “ the objection was taken that, under the pleadings, there could be no abatement short of an entire rejection of the specialties sued on, and no rescission of the contract, as the defendant had re-sold without tender back. I was very unwilling, after having spent many hours in examining the defence, to sustain an objection, which, if it must prevail, would have arrested the trial as soon as the defence was stated, if it had then been urged. I held that the plea might be considered a sufficient notice of discount, or such notice of partial failure of consideration as under our practice will serve to admit a partial defence. I directed the jury to make an abatement, if! under the evidence and the instructions given to them, they might find the defendant entitled to it.”
    The jury found for the plaintiff the balance, after allowing an abatement of $450.
    The plaintiff appealed, and now moved, for a new trial, on the grounds, inter alia, as follows.
    3d. Because his Honor also erred in charging the jury “ that they could allow a discount,” although no discount had been pleaded nor notice served upon the plaintiff of such a discount claimed by defendant.
    4th. Because the special plea in this case went to the whole action, and could not be sustained in part, and held bad in part; but that, under the pleadings in this case, the verdict should have been either for the plaintiff’s whole demand, to wit: — the amount of the notes and interest, or for the defendants.
    
      Henderson, for the motion,
    
      Young, Wright, contra.
   Curia, per O’Neall, J.

In this case, had I been of the jury, I would not have allowed the defendants a dollar of deduction. But that depends so much upon the facts, that I may just as well be mistaken, as the jury. Hence, therefore, I would leave the verdict undisturbed.

The only question is, whether the defence was admissible under the pleadings.

I have very little doubt, that the special plea might have been had, on special demurrer. But the plaintifF did not so treat it. He took issue upon it.

If the facts alleged in it were proved, they amounted to a claim for a deduction from the purchase, on account of a fraudulent misrepresentation.

It may be, that such a defence was proper as a discount, and not as a plea. Yet if the plea informed the plain tiff just as well as a notice- of discount, there is no reason to send the case back because a formal discount was not filed. The plea had been filed, for a time much longer than the notice required for a discount. Hence the substance of the law of discount has been obtained, and we never send a case back about a form, when the party complaining has not taken the proper steps to test the form.

The motion is dismissed.

Evans, Ward law, Frost, Withers and Whitner, JJ. concurred.

Motion dismissed.  