
    William Brown, jun. assignee of Robert Willoughby against Joseph Herron.
    Where a bond under the plea of payment is meant to be avoided for a total want of consideration, notice of the special matter must be given to the adverse party.
    Appeal from the decision of the Circuit Court of Allegheny county.
    The cause was tried before Judge Smith, on the 8th October 1807, when on the plea of payment to a bond, without giving thirty days notice of the special matters intended to be objected in avoidance of the same, the defendant offered testimony of a' total want of consideration, which the judge overruled, and a verdict was thereupon found for the plaintiff.
    
      The point was submitted to the court by the counsel on both sides, whether any distinction existed as to notice, between a total and partial want of consideration under the 29th rule of practice of the Circuit Court.
    Messrs. Ross and Wilkins, pro quer.
    
    Mr. Memple, pro def.
    
   Per Ctiriam.

There can be no possible ground of distinction, either within the words of the rule, or the reason of the thing itself. The object of the rule was to guard against surprize; and if it was proper that notice of the special matter should be given, where part of the demand is disputed, it must be equally so where the defence goes in avoidance of the whole amount of the specialty.

Judgment affirmed.  