¶1delivered the. opinion of the court.
¶2There 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 *794testimony 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.
¶3Without 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.
¶4Judgment reversed, and new trial awarded.