delivered the opinion of the court.
In this case, Smith addressed the following letter to Anthony:
“Col. Wm. Anthony — Dear sir: Wm. Mitchell, jr., will probably call on you to purchase your horse, and should you conclude to sell, you can do so. Take his note, and I will be responsible for the payment on his return. Respectfully, Zenas Smith. Fredericktown, 20th November, 1833.”
Anthony sold Mitchell his horse, and Mitchell carried him to Alabama and returned in “ bad circumstances.” Anthony sued Mitchell and recovered judgment, and took out execution, but found no effects to satisfy it. He then sued Smith, on the above guaranty, before a justice of the peace, and had judgment, from which Smith appealed to the circuit court. The circuit court. permitted Anthony to file a bill of discovery, and compelled Smith to answer. On the trial, Anthony gave in , evidence the above guaranty, the bill of discovery, and the answer; and proved by a witness that in November, 1833, Mitchell got iwo horses of Anthony — one a brown, valued at sixty-five dollars, and one a sorrel, valued at seventy dollars; that Mitchell received and took away the horses; that he went to Alabama to make sales; and that in about three months he returned without the horses, and in bad circumstances. Anthony had verdict and judgment, and Smith moved for a new trial, and alleged, among other reasons for granting it, “that there was no evidence that Anthony ever gave Smith notice that he had sold the horse to Mitchell on the guaranty, and looked to him for payment.” This motion was overruled, and Smith appealed to this court.
Several points are made by the counsel for the appellant, some of which do not arise out of the record in the *506cause. It is first insisted that the plaintiff had no right to amend his cause of action after the appeal was filed in the circuit court. It does not appear that he did so; but if the circuit court had permitted him to amend, by filing a new cause of action, it would clearly have been error. The statute provides, that “the same cause of action, and no other, that was tried before the justice, shall be tided in the circuit court upon the appeal; and no set-off shall be pleaded in the circuit court that was not pleaded before the justice, if the summons was served on the person of the defendant”- — Rev. Code, 1835, 371, sec. 16.
Quere. In an appeal from a justice of the peace to the circuit court, would the plaintiff bo entitled to a bill of discovery, the suit not having orignated in a court of record? He is certainly not entitled to a discovery of matters immaterial to the issue, in any case. In an aetion on a guaranty, wherein defendant wrote to plaintiff “that B. would call on him to purchase ahorse, and if he sold, he must take B’s note, and he (defendant) would be responsible for the payment on his (B’s) return;” plaintiff must prove that he gave defendant notice that he had sold on the faith of the guaranty, Io°^ 1 orp y*506The circuit court permitted the plaintiff to file a bill of discovery in the cause, and required the defendant to answer. The counsel for the appellant assign this for error also, but do not insist upon it in argument. The statute provides, that “either party to a suit in any court of record shall he entitled to a discovery from the other party, of all matters material to the issue in such suit, in all cases where the same party would, by the rules of equity, be entitled to the same discovery in a court of equity in aid of such suit” — Rev. Code, 1835, 462, sec. 10. Rut whether a bill of discovery will or will not lie in a case like the present, is a matter that will not now be decided. To dispose of this cause it is sufficient to decide that the matter here sought to be discovered— that is, whether the defendant did not verbally guaranty the payment for another horse than the one alluded to in the above letter — is immaterial to the issue in this suit, and, therefore, the defendant should not have been compelled to answer. To entitle a party to a discovery, the suit must be pending in a “court of record,” and the matter sought to be discovered must be “material to the issue.”
It was not proved that Anthony ever gave Smith notice that he had sold the horse to Mitchell on the guaranty, and that he looked to Smith for payment. The counsel for the appellant insist that this, should have been proved, to entitle Anthony to recover, and that as it was not proved, the court erred in overruling the motiop for a new trial.
“In an action brought upon a guaranty, unless the instrument given in evidence as such, purport to be an ab- , solute and conclusive engagement, the plaintiff must show that he gave notice to the defendant that he accepted it as such” — 2 Stark. Evi. 371; 2 Con. Rep. 423. The instrument here given in evidence, does not purport to be an absolute and conclusive engagement, and Anthony should, therefore, have notified Smith that he gave Mitch*507ell credit for the horse on the ground of the guaranty. This notice may have been necessary to enable Smith to regulate his conduct in regard to the payment of the debt; to prepare the funds for payment; to get the amount out of Mitchell, or, perhaps, to reserve a sum that may have been due from himself to Mitchell, and which, if ignorant of the acceptance of the guaranty by Anthony, he may have paid over to Mitchell. Notice of the ceptance of the guaranty should have been proven, and as it was not, the court erred in overruling the motion for a new trial. ' The judgment ought, therefore; to be reversed, and the other judges concurring, it is reversed,. and the cause remanded.