
    
      FISKE vs. BYNUM.
    
    Appeal from the court of the 6th district —the judge of said court presiding.
    rit is not necessary for a swear'that*0 the answer of “ theyWwiii as-defence,
   Martin, J.

delivered the opinion of the court. This case is before us on a bill of exceptions to the opinion of the district judge’ in overruling the motion of the defendant and appellant for an order to the plaintiff to answer the interrogatories put by the defendant, on the ground of their being impertinent, and their materiality not being sworn to.

We think that the interrogatories were not pertinent, except part of the third in which the plaintiff was asked to answer whether he did not make a compromise with John Parkins, whom he had summoned as a garnishee, as a debtor of the defendant, and after judgment, take his note or promise to pay on a subsequent day. The other questions requiring answers to facts, of which, if they exist, there is evidence on record.

We think the defence might be assisted by proof of the plaintiff having made the compromise, and received the garnishee’s note.

The law requires the defendant to swear *hat the answers to his interrogatories are ma- and will assist him in making his ° defence—the defendant swears the answers he sought to obtain, would assist him in his defence, but did not add they were material.

Thomas for the plaintiff— Oakley for the defendant.

We think the court erred in refusing the order to answer the part of the interrogatories cited, on the ground of its materiality not being sworn to. They could not assist in the defence, if they were immaterial; and if they could assist in the defence, they were material. The variance between the affidavit required, and that made, is so trifling that it ought to have been disregarded: tie minimus non curat lex. The substance of the act is complied with, and the words are of no consequence.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed; and the case remanded, with directions to the district judge to proceed therein, and order the plaintiff to answer the part of the defendant’s interrogatories cited: And it is ordered that the appellee pay costs in this court.  