
    Edward Broughton v. Jephtha Dyson.
    Defendant in assumpsit, offered in discount the value of a quantity of yarn, delivered to the plaintiff, more than he was entitled to, by mistake and without plaintiff’s knowledge. Held, that the discount could not be admitted.
    Before Evans, J., at Sumter, Spring Term, 1840.
    This was an action of assumpsit, to which the defendant pleaded in discount, among other things, forty-one dollars and seventy-two cents for one hundred and forty-nine pounds of yarn, at twenty-eight cents per pound.
    The facts were these. Plaintiff had delivered two thousand five hundred and twenty pounds of cotton to defendant to be spun at his factory. The yarn- produced was one hundred and forty-nine pounds less than the cotton. Defendant made up the deficiency and delivered the whole to plaintiff; the latter, however, knowing nothing about it. Afterwards, defendant ascertained that this deficiency was only the usual loss that occurred in the spinning of cotton, and therefore charged plaintiff, in his discount, with the value of the yarn so delivered by mistake:
    See 2 Bay, 106. An,
    
    The jury found in favor of defendant’^ discount; and the plaintiff, on that ground, moved the Court of Appeals for a new trial.
    
      Moses and Miller for the motion.
   Curia, per Evans, J.,

Held that, on this ground, “ the motion must be granted. There is no pretence for saying that Broughton bought one hundred and forty-nine pounds of yarn from Hyson. It may be just that he should pay it, and I suppose the verdict of the jury arose from an attempt to do abstract justice between the parties. But all experience proves the folly of any attempt to settle the controversies of litigants by any other than the known and settled rules of law. Broughton’s cotton, when spun, was, deficient one hundred and forty-nine pounds. Dyson was unable to account for it, and without Broughton’s knowledge made, up the deficiency. Afterwards, he discovered that the loss in weight was the usual consequence of converting cotton into yarn; and then charged Broughton with the yam thus delivered. We think there is no foundation for the pretence that this was a sale; and to allow the verdict to stand, would sanction the principle that one may make another his debtor without his knowledge or consent.”

Motion dismissed:

Gantt, Earle and Butler, JJ., concurring. Absent, Richardson and O’Neill, JJ.  