The opinion of the court was delivered by
Knox, J.The note dated November 8th, 1850, was clearly inadmissible. It was given some months before the note in suit, and was neither evidence of payment, nor did it tend to show failure of consideration:. There was no plea of set-off, and consequently the offer to introduce' evidence of goods sold and delivered by the defendant to the plaintiff was properly rejected. An affidavit of defence setting forth particularly in what the defence consists, may obviate the necessity of giving notice of special matters: Insurance Company v. Hakes. But evidence which has been given before arbitrators may not be received on the trial in court, unless it is appropriate under the pleadings: 2 Wh. 97; 2 Barr 88.
The order for twenty-five dollars, without date, specifying upon its face that it was to apply on old account, was no evidence that that amount had been paid on the note. So far the decision of *233the Common Pleas was right. But there was error in rejecting the receipts of May 10th, May 13th, and June 10th, 1851. These receipts all bore date after the note, and were evidence of money paid, whether applicable to the note or not, was a question for the jury to decide. Two of them, specify that the payment was on account, and the other is merely a receipt for fifty dollars, without anything further. The word account, without saying what account, whether book account or on account of some other claim, does not clearly designate the application of the money. These receipts should have been permitted to go to the jury subject to any explanations which either party could give to aid the jury in determining whether the money mentioned in the receipts had, or had not, been paid on the note in suit.
Judgment reversed and venire de novo awarded.