
    John R. Buce vs. E. L. Henagan.
    Discount cannot be offered in evidence under the general issue, or considered as payment; and the defendant cannot be permitted, without notice, to avail himself of a separate cause of action, which the plaintiff' cannot be prepared to resist.
    Before Richardson, J., at Marlborough, Fall Term, 1840.
    This was an action on merchants’ account. Mr. Buce proved his own account by his books. He further stated that he had received, in 1834, or 1835, for the defendant, $55, and also $13 or $14, but he had credited those sums upon a note of McLeod’s, to himself. He said, that in 1835, the defendant informed him he had demands on McLeod ; but in 1831, the witness received a letter from McLeod, denying defendant’s demands, of which he informed defendant. Defendant afterwards made no demand of the witness for the money. This evidence, brought out upon the cross-examination of the plaintiff, Buce, was objected to, because no discount had been pleaded; but I held it competent, under the general issue, to diminish the amount of the plaintiff’s account, by so much money received for the defendant. It might be considered as so *much paid, the plaintiff having transferred the money to the credit of McLeod’s note to himself, in or after 1831.
    
      Infra, 335. An.
    
    I so charged the jury, and advised them to do justice between the parties, and allow the defendant credit for the money, unless he had sanctioned the credit on McLeod’s note, That they might do this, notwithstanding the want of the notice of discount. The jury found for the plaintiff" a small balance, having evidently allowed the defendant credit for the money received for him by the plaintiff; and the plaintiff appeals.
    GROUNDS OF APPEAL.
    1. Because his Honor admitted the defendant to offer in discount a claim against the plaintiff, of old standing, without having given the plaintiff any notice of discount previous to or at the trial, in which case, plaintiff could have proved that defendant’s claim had been paid.
    2. Because his Honor charged the jury that they might regard defendant’s claim, which originated in the years 1834 and 1835, as a payment of the plaintiff’s account, which was all contracted subsequent to December, 1838 ; whereas, there was no evidence of any demand made on plaintiff for said discount.
    3. Because his Honor recommended the jury to do what they should consider justice between the parties, without regard to any distinction betu'een discount and payment.
    
      Bobbins and Mclver, for the motion. J. E. David, contra.
   Curia, per

Earle, J.

Payment seems necessarily to imply the assent of him who claims the benefit of it; and it is difficult to conceive of a payment which precedes, several years in point of time, the existence of the debt which it is alleged to extinguish, unless there be some proof of an agreement between the parties so to consider it. A counter demand is not payment. If the plaintiff had received the defendant’s money after his cause of action arose, he would not have been authorized to apply it as a payment, without the assent of defendant. The money received by the plaintiff here, was paid him four or five years before his_ cause of action arose against the defendant; during that time he was liable for so much money had and received to the defendant’s use, as a separate and independent cause of action. *If barred by the Statute of Limitations, before the account sued on was made, it cannot be supposed that there was any connection between them, as there is certainly no proof of any. If not barred, and the defendant had brought an action against the plaintiff, could the plaintiff' have relied on his present demand as a payment ? Certainly not. Discount and payment are not convertible terms. Discount may admit the existence of the plaintiff’s demand ; payment implies that it has been extinguished. If the plaintiff had applied the money received by him, as a payment of the demand sued on, it would have been at the option of the defendant to repudiate it or not. He might still have recovered it by action, and hence disputed the account. It is enough for the purpose of this motion, to say, that if the defendant’s demand against the plaintiff was a proper subject of discount at all, it cannot, under the general issue, be considered as payment; and the defendant cannot be permitted, without notice, to avail himself of a separate cause of action, which the plaintiff cannot be prepared to resist.

The motion is granted :

the whole court concurring.  