By the Court,
Paschal, J.It becomes unnecessary to decide any question in regard to thp evidence offered to impeach the answer of the plaintiff to the bill of discovery. The only issue was on the plea of payment. The evidence drawn out by the discovery could only properly be read to support the issue formed in the pleadings at law, Evidence, therefore, which merely goes to impeach the original consideration, cannot be offered under a plea of payment, but the same ought, to be pleaded, upon the universal principle that no evidence shall be allowed, except such as relates to the issue before the jury.
The note, although payable to Pope & Pope, administrators of W. Pope, is, nevertheless, payable to them in their own right, and the addition of “administrators,” &c., is merely personal description, as has often been ruled in this Court. This objection is untenable. Nevertheless, we arc compelled to decide, that the Circuit Court erred in permitting the note set out in the bill of exceptions to be read to the jury. The declaration (as appears from the record,) is upon a note dated “15th April, 1840,” and payable to “P. H. & Hamilton Pope.” The note read in evidence was dated “18th April, 1840,” and is payable lo “P. H. Pope and Hamilton Pope, adm’rs of Worden Pope, dec’d.” The variance in the dates, alone, is fatal. See Hanly vs. Real Estate Bank, 4 Ark. Rep. 598, and cases cited there in argument. Starkie's Evidence, and Chitty’s Pleading, tille “ Variance.”
But, although we decide this case upon the question of variance alone, yet, as there is another point presented which may again come before the Circuit Court, we deem it important to express an opinion in relation to it.
The defendant below, pending the suit, but before the forming of #any issue, filed a petition for discovery, as authorized by the 116th Chapter of the Revised Statutes of Arkansas, sec. 93. to 98. The defendant below set forth, in his petition, various allegations, some of which, possibly, might have tended to impeach the consideration, and others to establish an offset against the ancestor of the plaintiff, to whom the debt was originally due, but none of which tended to support the plea of payment. All these allegations, so far as they constituted a defence, were denied by the answer of Pope. Our statute gives to our common law courts the same powers, in petitions of this sort, that are given to courts of equity, and makes the answer “evidence in the trial of the suit in the same manner, and with the like effect, as an answer to a bill in equity for a discovery;” and, if the party fail to answer, the petition may be read in. evidence.
A bill of discovery', emphatically so called, .is a bill for the discovery of facts resting in the knowledge of the defendant, or of deeds or writings, or other things in his custody or power, and seeking no relief in consequence of the discovery, though it may pray for the stay of the proceedings at law, till the discovery is made. The bill is commonly used in aid of the jurisdiction of some court of law, to enable the party who prosecutes or defends an action at law, to obtain a dis* covery of the facts which are material to the defence thereof. If it can be used in other cases, they are very few, and under very special circumstances. Story’s Equity Pleadings 253. Hare on Discovery, 79, 110. Cardale vs. Watkins, 5 Maddocks, 18. And a bill of discovery, properly so called, never prays relief. Id.
The defendant below, in this case, read the answer, and thereby made it evidence, in accordance with our statute, as well as the general principles of discovery. The answer having denied every material allegation in the bill, the plaintiff in error then attempted to contradict or impeach the answer of the party, by reading a letter from the defendant in error, and by producing a tax-book, by which he proposed to prove that certain moneys were due him by Worden Pope, deceased, while plaintiff was sheriff. Such evidence was certainly inadmissible, under the state of pleadings, as the evidence would not have conduced to prove payment of the note. As a gencr ral principle, it is true, as stated by the counsel, and authorities cited' on both sides, that an answer can only be contradicted by two witnesses, or by one witness and strong corroborating circumstances.. And there is the more reason why the answer to a bill of discovery.; in aid of a suit at law, should not be incidentally contradicted. The-discovery is generally granted upon the principle that the party can-* not prove the discovery sought, without resorting to the conscience off the opposite party. This is of the essence of the right. He hero makes him his witness, reads the answer in evidence, and then attempts to show, by circumstantial documentary evidence, that his own* witness is not to be credited. Such a principle issurely inadmissible,. upon any rule of chancery or common law practice. The Circuit Court, therefore, decided correctly, in excluding the evidence offered.' to impeach the answer.
In conclusion, we will remark, that the whole proceedings would seem to warrant the conclusion-, that the variance already pointed out, so far as respects the date, may have occurred in transcribing the record. We are, however, bound bj' the record, as submitted to us. And we may incidentally add, as a caution to the profession, that the verdict of the jury is for a fraction more than the sum demanded. De ■minimis non curat lex, is a maxim of the law; nevertheless, strict care, ■on the part of the counsel, would save many difficulties .to the Court,, ■as well as expense to suitors. Judgment reversed.