
    [Philadelphia,
    January 17, 1826.]
    ALEXANDER and another against PUSEY, for the use of DARLINGTON.
    IN ERROR.
    In assumpsit For goods sold, brought by A. to the use of B. against C. and D. for goods furnished to C. and D. at B’s. request, and afterwards paid for by B., where the pleas are non-assumpsit and payment with leave to give the special matters in evidence, the defendants cannot, without notice of special matter, give in evidence the declarations of B., that when he paid A. for the goods, his accounts with C. would be about square.
    Error to the Court of Common Pleas of Chester county.
    This was an action on the case, for goods sold and delivered, brought by Jacob Pusey, the plaintiff below and defendant in error, against John Alexander and William Ralston, the plaintiffs in error. The plea was non-assumpsit and payment with leave to give the special matters in evidence. No notice of special matter was given to the plaintiff. The suit was marked on the docket for the use of Benedict Darlington. On the trial of the cause, the plaintiff proved the sale and delivery of the goods; also, that they were sold and delivered on the credit of a letter from Darlington to Pusey, the plaintiff, in which he undertook to be responsible for the payment. The defendants then offered to prove, by the oath of James Buck, that after the sale and delivery of the goods as aforesaid, Darlington said, that “when he (Darlington) had paid Pusey for these goods, bis accounts with John Alexander would be about square.” This evidence was objected to by the plaintiff, and rejected by the court, whereupon the plaintiff excepted to their opinion.
    
      Edwards, for the plaintiffs in error,
    now contended that the evidence was admissible, and that the ground on which the court had rejected it, namely, that it was special matter of which no notice had been given by the defendants, was not tenable. It was proper evidence under the pleas, without notice, because it went to show that the plaintiff had no right to recover, and that his debt was paid; for the suit being for the use of Darlington, it was to he considered in the same light as if brought by him; and in that case it went in bar of the action, under the issues joined.
    
      Dillingham, contra,
    insisted that it was evidence of special matter: it was in fact a set-off of a debt due by Darlington to Alexander against Darlington's claim in this suit against Alexander and Ralston. He cited Dunlop v. Myers, 4 Yeates, 366. Wharf. Dig. 531, pl. 43, 45. He also contended, that a debt due to one of the defendants by the plaintiff cannot be set off in a suit against both. To this point he cited the Defalcation Act of 1705. Purd. New Dig. 175. 3 Yeates, 26. Mont. on Set-off, 23. 6 Bac. 
      
      Ab. 136. 1 Wheaton’s Selw. 117. 1 Coxe’s New Jersey Rep. 11. 11 Mass. Rep. 140. 2 Madd. Ch. 663. 5 Cranch, 34, 35. 4 Johns. Ch. 11. 9 Serg. & Rawle, 382.
    
   The opinion of the court was delivered by

Til&hman, C. J.

If notice of this evidence had been given by the defendants to Darlington, for whose use the suit was brought, or to his attorney, I think it would have been admissible. But it was a defence of a special nature, and therefore notice ought to have been given. This action was brought, not in the name of Darlington, but of Pusey. The declaration did not mention Darlington, but set forth that the goods were sold and delivered by the plaintiff (Pusey) to the defendants. The pleas of non assumpsit and payment applied to Pusey and not to Darlington. Nevertheless, as the action was for the use of Darlington, the defendants might have averred that the fact was so, and then have pleaded, that they had made payment to Darlington, or that they had an account agairist him, which they intended to set off. Or, having put in the pleas of non assumpsit and payment with leave, &e. they might have given notice, that they intended to give evidence of payment to, or a set-off against Darlington, or of his confession that when he had paid Pusey’s demand, the accounts between himself and Jllexander would be about square. This was a collateral matter, altogether foreign to the demand made by Pusey in this action, although a good defence against Darlington, for whose use the action was brought. It was special matter, therefore, of which Darlington was entitled to notice under the rule of court, because without notice he might have been taken by surprise, inasmuch as the pleas of non-assumpsit and payment were only in answer to the declaration which averred that the goods were sold and delivered by Pusey. It is a great indulgence to defendants to permit them to give evidence of special matter in this informal way. It saves the expense and danger of special pleading. The least that can be expected therefore, is, that the plaihtiff should be protected against surprise, by notice of the matter intended to be given in evidence, in bar of his claim. For these reasons, I am of opinion that the evidence was properly rejected, and therefore the judgment should be affirmed.

Judgment affirmed.  