
    Latimer and another against Hodgdon.
    
      Tuesday, March 28.
    Though the entry of an amicable action state the plaintiffs to be assignees of A. yet if the narr and bond are of an assignment to the plaintiffs by B. it cannot be taken advantage of on trial. If the variance is material there must be a demurrer.
    Calling on the plaintiff to produce books and papers on the trial, does not authorise the defendant to go into evidence of their contents to prove a set-off, without special notice before hand of the set off.
    DEBT on bond, tried before the Chief Tustice at # ^ Nisi Prius, and verdict for the defendant,
    1 he suit was an amicable action of debt, entered in the of Thomas Latimer and Joshua Lippincott, assignees of George Farquhar, against Samuel Hodrdon. The decla. . , , . . , , , , r ration was in debt, on a joint and several bond, from Samuel Hodgdon and Thomas Allibone, to Samuel Fork, dated 25th May, 1813, assigned by Samuel York to the plaintiffs, on the ° „ , , , , , •, 28th Jkebruary, 1816, the defendant pleaded payment with leave, &c., and set-off: but gave no notice of special matter,
    On the trial the plaintiffs offered in evidence, a joint and several bond from Samuel Hodgdon and Thomas Allibone, to Samuel York, on which was indorsed an assignment by Samue^ York to the plaintiffs, on the 28th February, 1816, under seal and in the presence of two witnesses. The defendant objected to the bond’s being given in evidence, on the ground thut the plaintiffs were not stated in the agreement to enter the action, to be the assignees of Samitel York, but of George Farquhar. But the objection was overruled by the Court, and the bond admitted in evidence.
    The defendant had given a notice to the plaintiffs’ counsel to produce on trial the general assignment of George Farquhar to the plaintiffs, with the schedule annexed, and also all the books, papers, and accounts of the said George Farquhar, and a statement of the monies and other properties- received by them under the s/iid assignment. On the trial, he offered to read in evidence, the said assignment of George Farquhar to the plaintiffs, in order to shew that the defendant was one of the preferred creditors. The plaintiffs objected to this evidence, on the ground, that no notice of the matter to be offered in evidence, either as a set-off or otherwise, had been given according to the rule of Court. The Court sustained the objection, and overruled the evidence.
    
      Ewing, now moved for a new trial, and contended,
    1. That the set-off which the defendant had offered in evidence could not take the plaintiff by surprise, because they had the papers in their possession which they had had notice to produce : the discount was, therefore, in the spirit of the rule of Court, made known to the plaintiff.
    2. The action was in the name of Thomas Latimer and Joshua Lippincott, assignees of George Farquhar, but the declaration set forth an assignment from Samuel York to the plaintiffs. There is, therefore, a variance in a material point.
    
      Tod, contra, was stopped by the Court.
   The opinion of the Court was delivered by

Duncan J.

The narr. and bond correspond. If apy advantage could have been taken of the variance between the docket entry of the action, and the narr., it should have been on demurrer. The evidence was certainly good on the issue joined. As to the special matter offered by the defendant, it was not admissible, because notice was not given. It was not properly a discount, because it was necessary to connect special matter with it, in order to render it evidence.

Judgment for the plaintiffs.  