
    The Owners of the Steamer St Matthews vs. I. D. Mordecai.
    Where the plaintiff’s demand has been reduced by a discount below the sum. pro. jurisdiction, the practice is to give a decree for the balance.
    Before O’Neall, J., Richland, Spring Term, 1841.
    This was a sum. pro. to recover the freight, $32.49, on certain articles shipped from Charleston to Columbia, on board the Steamer St. Mathews. She reached her usual port of delivery, *Granby. She could not, at any time, ascend further up the river. The goods of the defendant were delivered to a wagoner, to be by him delivered. This was the course usually pursued. A part of them came properly to hand. A parcel of buckets were sent to Union district. After some time they were recovered by the agent of the boat, except two, which were lost. Sixteen were injured. The defendant refused to accept them; but, at last, did receive them into his store, and had a survey made by Mr. Solomons, who said that the two lost were worth $6, and the sixteen damaged were injured, each, $1. The defendant relied on a discount for the lost and damaged articles, as well as on the defence, that the steamer did not deliver the goods shipped.
    See Owens vs. Curry 3 Strob. 261. Vaughn vs. Cade, 2 Rich. 50. An.
    
    I allowed the defendant a discount of $22, and gave plaintiff a decree for $10 49. The defendant appeals on the annexed grounds.
    1. That the culpable negligence of a carrier ought to vitiate his whole claim under his implied contract, which he has wilfully neglected to fulfil.
    2. That the defendant, having expressly refused to accept his damaged goods, ought not to have been held to have accepted them at their damaged value, only because he allowed them to lie in his store.
    3. Because his Honor gave judgment for a sum less than the jurisdiction of the Court.
    
      Cheves, for the motion,
    cited 3 Hill, 202; Caldwell vs. Garmany; Saunders vs. Gage, Cheves, 165, and said the plaintiff was not entitled to freight until the goods were delivered. The plaintiff, said Mr. C., was proved to have known the amount of this discount.
    
      Gregg and Gregg, contra.
   Curia per

O’Neall, J.

The motion for a new trial in this case, has been at rest altogether upon the 3d ground. As to which, it may be remarked, that the defence of the defendant arose altogether from a matter of which he could only avail himself by discount. For the plaintiffs proved their title to demand their freight, $32 49, by showing a delivery of all the *articles shipped on board the steamer, except two buckets. For the value of these, and the injury done to sixteen others, in their travel to Union and back again, the defendant was entitled to compensation. This was clearly a cross demand by way of discount, Ewart vs. Kerr, (Rice’s Rep. 205.). Where the plaintiff’s demand is reduced by a discount, to a sum below a magistrate’s jurisdiction, the practice has been uniform, to give a decree of such balance. It is clearly distinguishable from the case where the demand is reduced by payments. There, the plaintiff has no right to demand more than the balance left after deducting the payments. But where, as in this case, the defence arises from matter which may, or may not be applied to the reduction of the plaintiff’s demand, and which, therefore, can only be insisted on by way of discount, it does not have the effect of sending the plaintiff to an inferior jurisdiction, if his demand should be thereby reduced to a sum of which a magistrate has cognizance.

The case of Smith vs. McMasters, (3 McC. 288,) is an illustration of the rule. The plaintiff there sued for $48, the defendant pleaded a discount, the plaintiff had a decree for 15 cents. It was held that the plaintiff was entitled to tax process costs against the defendant.

The motion is dismissed.

The whole Court concurred.  