The Court was of opinion, that the judge in the circuit court at Colleton, was right in ordering on the cause to *354trial, unless the defendant had discriminated in his affidavit, and shewn which of the items in his discount he meant to substantiate by his absent witnesses. That the discount law never meant, that torts, trespasses, or any unascertained damages should be set off. That it contemplated debts, dues and demands, of a pecuniary nature, or something springing out of a contract where there were mutual covenants which depended one upon the other, and no other kinds of discounts had ever been offered or allowed of in our courts of justice ; otherwise, a variety of different and very opposite kinds of actions, or issues, might be blended together in the form of a discount, as slander, assault, trespass to freehold, and other cases sounding in damages only, which might perplex and harass courts and juries exceedingly, unless a proper line of discrimination was drawn. That the decision made in the federal court by the chief justice of the United States, was a wise and legal decision. That nothing could be discounted but money matters, and the term “ balance” made use of in the act, was a strong; corroborating proof of it, as that was the sum the jury was to find for the plaintiff; but the act goes still further, and says, that if the balance should be in favour of the defendant, then judgment shall be given for such sum as may be due to the defendant; which is a further proof of the intentions of the legislature, that money transactions only were alluded to in the act.

But as the practice on this point had never been before settled, and as there was in this discount a charge for money had and received, which came within the purview of the act, they thought it best in this case to allow a new trial, lest the defendant should be deprived of an opportunity of substantiating that part of his discount, which might work (if it was just) a manifest injustice to him.

Rule for new trial made absolute.