
    Bryson against Ker and another administrator of Irvine. Same against Same.
    In Error.
    
      June.
    
    In an action bond, it was deitthe*pica*'" of payment give the apeciai matter in evidence tne defendant that’^e'plaintjff had agreed t-liRt certain monies to be defendant*6 shouid he detheamountof thaUm had*'1 paid them, inggiven the cíaí matter ré quired by the tile Coubt of p°mnofCo lumbia county,
    THESE were actions of debt on bonds brought in the Court of Common Pleas of Columbia county, by the defendants- *n error against the plaintiff in error, in which the defendant below pleaded payment, with leave to give the special matter in evidence. The replication in each suit was non so¡vif an¿ issue. They were tried before arbitrators, from * f whose award the plaintiffs appealed, and in the Court of Common Pleas it was agreed that both causes should be tried ton-ether. After the bonds had been given in evidence, the ® ^ defendant offered to prove, they were given in part payment f°r a tract of land which had formerly belonged to one Lazarus; that a short time after the defendant had purchased, an ejectment was brought by the heirs of Lazarus against him; t^at he employed counsel to defend the said ejectment, and paid considerable sums of money in conducting the defence, and that Robert Irvine, the plaintiffs’ intestate, agreed, after t^le salc* ejec.tlnent had been brought, that whatever money the defendant should expend in feeing counsel and for other necessary purposes in defending the said ejectment, should deducted from the amount of the bonds, and that he should also be allowed for his time and trouble.
    The defendant further offered to prove, that all the evidence above-mentioned had been given before the arbitrators who tried these causes, in the presence of the plaintiffs or one of them ; that their attorney took it down in writing, and that no objection was made to its admission.
    The plaintiffs’ counsel objected to the admission of this evidence, on the ground, that no notice of the special matter intended to be given in evidence had been given, agreeably t® the 11th rule of the Court. The Court rejected the evidence^ and this was the foundation of the present writ of error;
   The opinion of the Court wás delivered by

Duncan J.

It is unnecessary to decide whether, when the evidencé has been given before arbitrators on a trial under the compulsory arbitration act, and reduced to writing by the attorney of the plaintiff, and" received without objection on such trial, it would not amount to notice of the special matter, within the rules of the Court of Common Pleas, because the evidence was clearly admissible on the plea of payment alone; and it was proof of direct payment, so far as respected the money paid to counsel in defending the ejectment, and the other expenses incurred j for the defendant offered to prove, that the plaintiff’s intestate agreed with the defendant to deduct from the bonds any money that should be paid by the defendant to counsel. It was an order and direction by the plaintiff’s intestate to pay money to others on account of these bonds; and that money so paid should be received as payment of the bonds. The 11th section of the rules of practice of this district, providing that on a plea of payment to a bond or specialty, the defendant may on the trial, in avoidance of the deed, give in evidence, that it was given without any or a good consideration, or obtained by fraud, or by a suggestion of •falsehood, or by a suppression of the truth, but that of all such matters intended to be objected in avoidance of such bonds or specialties, the defendant shall give the plaintiff at least 30 days notice in writing before th^ trial, has no relation to the question. The evidence offered did not go in avoidance of the deed; it was not an offer to prove that the bond was obtained with any or a good consideration, or by fraud, or suggestion of a falsehood or suppression of truth; it was evidence of the direct matter put in issue. Defendant alleges that he has paid; plaintiff denies the payment; the defendant offered to prove his allegation, by shewing money paid on account of the bond, and by order of the plaintiff’s intestate.

Judgment reversed^  