
    Henry G. Foster vs. William M. Pinckard.
    Where the defendant filed a petition of discovery against the plaintiff, requiring him to state whether or not certain alleged payments had been made on the note in suit, and the petition was neither answered nor taken for confessed, the defendant had a right to abandon the petition, and introduce a witness to prove the payments.
    P. sued F. on a promissory note, F. filed a petition of discovery against P., requiring him to answer whether or not certain alleged payments had been made on the note ; the petition was not answered by P., nor taken for confessed against him. On the trial F. introduced a witness, and offered to prove by him the payments, and that the testimony came to his knowledge after he had filed his petition of discovery, and the court refused to permit the testimony to go to the jury ; held, that it was clearly erroneous to exclude the testimony.
    In error, from the circuit court of Warren county, Hon. George Coalter, judge.
    This was an action of assumpsit, brought by William M. Pinckard, against Henry G. Foster, George W. Foster, Admiral W. Warren, David J. Rariden, and Walter R. Puckett, as maker and indorsers of a promissory note. The defendants pleaded the general issue, and payment. Pending the suit, Henry G. Foster filed a petition of discovery against the plaintiff, alleging that he had given to the plaintiff certain notes, particularly described in the petition, in full payment and discharge of the note sued on. The petition assigns the reason why the note in suit was not taken up when it was paid, and avers that the facts stated in the petition, could only be proven by the plaintiff, and calls on him to answer, &c. On this petition process was issued, which was returned executed on the plaintiff; but it was never answered by the plaintiff, nor taken for confessed against him. On the trial the plaintiff read in evidence the note sued on, and rested his case. . The defendants then introduced William H. Hurst, and offered to prove by him the payment of upwards of sixteen hundred dollars on the note sued on, and that at the time he filed his petition for a discovery, he was not aware of what Mr. Hurst could prove. The plaintiff objected to the testimony, on the grounds that it contradicted the petition filed by the defendant, Henry G. Foster, for a discovery, and that the petition precluded the defendants from giving any other evidence of payment than the answers of the plaintiff to the petition. The court sustained the objection, and refused to permit the testimony to be given to the jury, to which the defendants filed a bill of exceptions and, after a verdict and judgment for the plaintiff against Henry G. Foster, and in favor of the other defendants, Henry G. Foster brought the case to this court, by writ of error.
    
      George S. Yerger, for plaintiff in error.
    Taylor, for defendant in error.
    In this case, pending the suit, the defendant below, Foster, filed his petition in the circuit court, praying a discovery from the plaintiff, Pinckard, relative to the payment of the note sued on, alleging those facts to be in the knowledge of the plaintiff only. The plaintiff answered, after which, on the trial, the defendant offered to prove, by a witness, the payment of said note, which was objected to by plaintiff’s attorney, and the objection sustained by the court. To this opinion defendant’s attorney excepted.
    It is insisted that the judgment must be affirmed.
   Mr. Justice Clayton

delivered the. opinion of the court.

There is but a single point in this case. The plaintiffs in error, the defendants in the court below, filed a petition of discovery against the plaintiff below, requiring him to state whether or not certain alleged payments had been made upon the note in suit. This petition was not answered, or taken for confessed, but seems to have been abandoned. Upon the trial the defendants introduced a witness, and offered to prove by him the payment of upwards of sixteen hundred dollars of the debt; and to show that they had come to a knowledge of the testimony after they had filed the petition of discovery. The court below refused to permit the testimony to go to the jury, and for this alleged error the cause is brought to this court.

Without intending to decide what would be the law, if the petition had been answered, and the answer insisted upon as evidence, it was clearly erroneous to exclude the testimony in this state of case. The petition might have been dismissed by the party; there was a clear abandonment of it, and no possible prejudice could ensue to the plaintiff, from the introduction of the testimony. He might have used the petition as evidence of an admission by the defendants, if he had chosen to do so, but the circumstances gave no right to him to exclude all other proof.

Judgment reversed, and new trial awarded.  