
    Milton H. Carson and Owen W. Saxon, Use of William B. Dozier, vs. William H. Flowers.
    Where the answer to a bill of discovery is used, it is evidence for or against the party using it; but the bill of discovery may be dismissed, and other evidence resorted to.
    If the party who prays for a discovery does not use the answer, it is not his evidence, and he cannot be concluded by it, and he may introduce other evidence to establish the fact in reference to which a discovery was sought.
    Error from the circuit court of Smith county ; Hon. Thomas A. Willis, judge.
    This was an action of assumpsit, by Milton H. Carson and Owen W. Saxon, partners, doing business under the firm and style of Carson & Saxon, for the use of William B. Dozier, against William H. Flowers, founded on a promissory note for the sum of $156 67. The defendant, by plea, under oath, denied the execution of the note. The plaintiffs then filed a bill' of discovery, calling on the defendant to answer whether he did not make the note, &c. The defendant answered, and again denied the execution of the note. At the trial the plaintiffs did not use the answer to the bill of discovery, but offered to prove, by several witnesses, that the defendant admitted the note to be genuine, and said he would pay it; but the court refused to permit the evidence to be given, because it contradicted the bill of discovery and answer, and the plaintiffs excepted. The defendant then read to the jury the bill of discovery and answer, and rested his case. After which, and as rebutting evidence, the plaintiffs again offered to prove that the defendant had several times admitted the note to be good against him, and promised to pay it; but the court again rejected the evidence,, and the plaintiffs filed a second bill of exceptions. After a ver-diet and judgment for the defendant, the plaintiffs moved for a new trial, and introduced affidavits, showing that the evidence offered on the trial had been discovered since the bill of discovery had been filed; but the court overruled the motion, to which the plaintiffs filed a third bill of exceptions, and removed the case to this court, by writ of error.
    
      Joseph Heyfuon, for plaintiffs in error.
   Pee Cueiam.

The plaintiff in error brought this suit on a promissory note. The defendant denied the making of the note, under oath, and the plaintiff filed his bill of discovery, which the defendant answered, again denying the making of the note. The bill of discovery and answer were not used on the trial by the plaintiff, but he offered to prove by two witnesses, that Flowers had acknowledged the genuineness of the note, but the testimony was ruled out, as being inconsistent with the allegations in the bill of discovery. On an application for a new trial, it seems the plaintiff introduced affidavits showing that the testimony offered on the trial had been discovered since the filing of the bill of discovery. In ruling out this testimony we think the court erred. When the answer to a bill of discovery is used, it is evidence for or against the party using it; but the bill of discovery may be dismissed, and other evidence resorted to. If the party who prayed the discovery does not use the answer, it is not Ms evidence, and he cannot be concluded by it, but may introduce other evidence to establish the fact in reference to which discovery was sought. The rule has been ever held to be that, after a party has introduced an answer, he may disprove the allegations which are detrimental to his cause. Nourse v. Gregory, 3 Littell, 378, cited 3 Phil. Ev. 926, note 642. Whether the rule goes to this extent we need not now decide.

Judgment reversed and cause remanded.  