Majority
p. 41GLAZIER & KING, Assignees of HORN, an insolvent vs. JAMES McCallister.
Headnote
A counter claim which might be set off is not admissible under the plea of discount^ without proof of an agreement to discount it.Action on a note, dated April 11, 1846, for $277. Pleas, payment ; discount, and statute of limitation.
p. 42
The defence set up a counter claim on book of account of defendant,- for goods sold and delivered to plaintiff. It was objected to, on the ground that there was no plea of set-off; and insisted on under the plea of discount.
Patterson, for plaintiff.
Whitely, for defendant.
said there had never been any definite idea connected with the plea of discount in our practice. They could not give it the force or meaning of a>plea of set-off, and the defendant was not at liberty under these pleadings to present his counter claim for goods sold and delivered, which would be a mere set-off; but if he could follow up his books with proof of an agreement to deduct, defalk, or discount the goods so sold by defendant to plaintiff, against this note, the court would allow of this evidence.
Verdict for plaintiff $307 47.