
    Brown vs. Hill.
    October 15.
    Errof to th©. Mason Circuit; "Win. P. jRoper, Judge.
    
      Warrants. Appeal. Matter in avoidance.
    
    Appeal.
    •Case 134.
    Defendant, on the trial of a warrant or an appeal in circuit, may call on plaintiff to answer on oath any matter in avoidance, whether the matter in avoidance extend to the whole or a part only of the cause of action.
    
      Mills and Brown, for plaintiff.
   Judge Underwood,

delivered the opinion of the court.

Hill warranted Brown upon an account for $30. Brown insisted on his right before the justice of the peace, and also in the circuit court, (where the cause had been taken by appeal) to examine Hill on oath, touching matter in avoidance of the demand set up by him. This privilege was refused by the court and Brown excepted.

We think the court erred in refusing to compel Hill to answer. By an act of 1809, (II. Dig. 700,) and an act of February 13, 1828, extending the provision of the former act to the trial of all causes before justices of the peace, and to all appeals in the circuit courts from the judgments of justices, the right is clearly given to a defendant, to call on the plaintiff to answer, on oath, touching any matterin avoidance. The matter relied on by Brown was of that character. Whether it extended to the whole cause of action or to a part only, cannot alter the rule.

Judgment reversed with costs, and the cause remanded for a new trial in conformity to this opinion.  