And that it had been determined over and over again, that a defendant may defend himself by as many titles as he pleases to rely on, and if any one avails him in law it is sufficient; the others are nugatory, and go for nothing. Rule for new trial discharged. All the Judges present. Starke, for the plaintiff, Evans, for the defendant. Strange V. Durham. RICHARD STEEN against DRAKE & CAVENAH. TRESPASS to try title to land in Union district. Motion to set aside nonsuit. This cause was on the docket at the preceding court to the one when the nonsuit was ordered, to wit, in November, 1800, and according to the rule of court was regularly called as soon as the juries were made up and sworn at the April court, 1801, which was about 11 or 12 o'clock on the Columbia, 1802. Wherever costs are ordered to be paid by either party to the suit while the cause is in transitu, the bound to pay demand a tax party who is is to call and ed bill from the attorney of the other tender the money; but if his opponent tender the bill first day of court, but the plaintiff's witnesses not being ready, he made an affidavit of their absence and materiality, party, and to &c. in the usual form; when the court ordered the cause to stand over on the plaintiff's paying the costs within thirty days, or, in case of failure, being nonsuited. The costs not having been paid agreeable to the order of court, the clerk of the next succeeding court, to wit, in November, 1801, and tender the omitted to put the cause on the docket for trial, and signed who is bound an order for judgment of nonsuit. Mr. Gist, the plaintiff's attorney, as soon as he found there was an order for nonsuit and demanding a bill, is not sufficient; the attorney on record is the person the party on either side, and is the person to be called on for that purpose. when called on, then it is his duty to go bill to him to pay and deney. Calling at the clerk's office, who represents Steen V. Drake and signed, moved the circuit court to have the order set aside, and the cause reinstated, upon the following grounds: 1st. That no costs had ever been taxed as having accrued at the preceding court, as the plaintiff had called at the clerk's office to inquire what was to be paid, but could get no information on the subject; and, 2dly. That no judgment had ever been finally entered up, only an order for one, which he moved might be set aside, as he was then ready and willing to pay whatever was due. But the presiding judge (GRIMKE) refused to make the order, and confirmed the nonsuit for this supposed laches. This was therefore a motion to reverse the order for the nonsuit, and to have the cause placed again on the docket for trial. The judges, in order to settle the practice in our courts, resolved, that in all cases where either party, plaintiff or defendant, was ordered to pay costs, the party who was bound to pay should call on the attorney of the other party and demand his taxed bill within a reasonable time; and if the party who was to receive them, was not ready with his bill at the time appointed, then it was the duty of the party who was to receive them to call and offer his taxed bill for payment and demand the amount, without which he should not have the benefit of the order of court. · As, however, the obligation to pay the costs in this case was on the part of the plaintiff, at whose instance the cause was postponed, he should have called and demanded the taxed bill, and tendered the amount within the time prescribed by the order of the court, which had a right to impose terms on the parties; but as he made default, the defendant was regular in signing the judgment of nonsuit. That calling at the clerk's office for a bill was not sufficient; the attorney on record is the person who represents the party, and the application should in all cases be made to him. Rule for setting aside the nonsuit discharged. All the Judges present. N. B. This case is only important, as it settles a rule of practice in regard to payment of costs while a cause is in transitu. Steen V. Drake and WARREN HALL against DAVID WILLIAMS. CASE from Union district. Upon a motion to have the costs of an action tried by a jury reduced to the same costs as on a summary process. court, The plaintiff in this case, had a verdict for a sum under 20. sterling, within the summary jurisdiction of this and, from his own books, the demand was plainly within the summary jurisdiction after all just credits were given. Mr. Nott, defendant's counsel, moved, that the plaintiff should only have the same costs taxed him as are allowed on a summary process, in lieu of those usually taxed on an issue, tried in the court of common pleas by a jury of the country, and for that purpose quoted 3 Will. 48. as in point. This was opposed by Mr. Gist, for the plaintiff, on the ground that the plaintiff had credited the defendant for cot ton and other articles in his books, but had not carried out the prices in money, so as to reduce his demand below 204 sterling; that these articles were of uncertain value, which VOL. II. 3 I depended upon the state of the markets, and until the sales were made of them and an account received of the nett proceeds, the sums could not be carried out in the books which were produced, nor the exact balance struck. To this it was replied, by Mr. Nott, that most of the payments in the country, were made to store-keepers and others in the public line, in corn, cotton, and other valuable staple commodities of the country, in the course of the year as the crops came round; and to suffer shop-keepers and others to recover the amount of their demands for goods, without deducting the payments made in the produce of the soil, would be an actual fraud, practised on the agricultural part of the community. That it was the duty of every store-keeper, or other public dealer or trader, to give credit at the usual market prices in the country for all articles received in payment from the planters, on the day of delivery, and not to leave the value of these articles open for the purpose of giving what credits they pleased at a future day, when the prices might be considerably depressed in the market. That according to this rule, if the credits had been given in this case at the current prices in the country, the plaintiff's demand would have been reduced to 10. the sum given by the jury, which is only one half of the sum which might be recovered in the summary jurisdiction of this court. By the court, unanimously. All credits or payments made in the produce of the soil of the country, should be credited at the current value thereof on the day of delivery, and the value not be left open to be filled up at a future day, unless there be some contract to the contrary; otherwise, it would be opening a door for fraudulent practices on the part of store-keepers and country traders, which it is the duty of this court to prevent as much as possible. That with regard to osts, it has often been determined in our courts, that where the plaintiff's demand was origin ally above 20. but had been reduced by payments of any kind to a less sum, he should only receive the costs of a summary process. But where there are mutual subsisting debts or demands between the parties, he shall have his full costs though the demand be reduced below 20. sterling; because, the plaintiff when he brings his suit, cannot tell whether the defendant will set off his demand or not, as he may have his cross action, so that in such case he would lose all that part of his demand which exceeded the 20%. sterling; and so with respect to assigned notes or demands negotiated over to a defendant, of which a plaintiff might be ignorant at the time of bringing his action or suit. But, it is otherwise, in cases of payments made by the defendant to the plaintiff himself; they are not debts due and owing, but discharges pro tanto, and as it appears in the present case that the cotton and other articles were delivered in part payment of defendant's debt, their value ought to have been credited pro tanto on the days of delivery. The case cited from 3 Will. 48. is good law and in point on this subject, as also Strange, 1191. Let the rule be made absolute for taxing for the plaintiff the amount of the costs on a summary process only, and let the defendant have his costs, all but what he would have been compelled to pay in defending himself against a summary process, to be deducted out of the amount of the verdict. Present, GRIMKE, WATIES, JOHNSON, TREZEVANT and BREVARD. Hall V. Williams. |