Chandler v. Hudson , 8 Ala. 366 ( 1845 )

COLLIER, C. J

Neither the affidavit or interrogatories are drawn with precision, or accuracy, in the use of language. The former is unnecessarily verbose, yet it affirms that the defendant is entitled to a set off against the note declared on, for $395 26, that he is informed, and believes, that Beadles, for whose use the suit is brought, has no interest therein, but he is made a beneficial plaintiff to embarrass the defence. The interrogatories then call on him to answer, whether the nominal plaintiff was not the proprietor of the note, when the suit was commenced ; or if he is the owner of it, when and how he acquired it, and what he gave for it; whether the suit has not been brought for his use, for the purpose of cutting off a defence against the nominal plaintiff. Did he not know, before he became Interested in the note, that the defendant had sets off against it for a large amount, and that he was entitled to a set off of $395 26.

This brief recital of the affidavit and interrogatories will sufficiently show, that they are not so much wanting in point and directness as to subject them to the imputation of being in the nature of a fishing bill; but that they alledge the existence of a pertinent fact, which the defendant believes to be within the plaintiff’s knowledge, and calls upon him to answer in respect to it.

Mallory v. Matlock, is unlike the present case. There it was determined that the refusal to allow interrogatories to be exhibited to a plaintiff at law under the statute, was a matter which did not enter into the judgment of the Court, and could not be revised on error; that if the defendant was prejudiced by their dis-allowance, he had his remedy by mandamus, or some other appropriate proceeding. Here the interrogatories were allowed, and Beadles required to answer them, within sixty days after being served with a copy. The Court expressly affirmed their pertinency, and could not force the defendant to receive answers irregularly verified, or insufficiently authenticated. The statute declares, that if the party to whom the interrogatories are propounded, shall fail to answer the same, or answer evasively, the Court may attach him, or compel him to answer in open Court, or it may continue the cause, and require more direct and explicit answers, or if thé^peLi'ty to whom such interrogatories shall be propounded, be defendant in the action, it may set aside his plea or pleas, and give judgment against him, as by default; or if the plaintiff, may. order his suit to be dismissed with costs, as shall in the discretion of the Court be deemed most just and proper. [Clay’s Dig. 341, § 160.] In the case cited, the Court refused to act; here it acted so as to render it unnecessary for the defendant to file a bill for a discovery, and the error insisted on is, that if should have followed the act with the consequences which the statute visits upon a failure to answer according to its directions; and this argument, we have seen, is well founded under the circumstances.

The CircuitCourtcouldnot regard the certificate and attestation of the individual who affirmed that the answers were made and verified before him, as a justice of the peace of Georgia. It could know nothing of his official character, unless it was vouched by the proper evidence. The testimony of a third person, that he had some time previously when in Georgia, heard it said that the person certifying the answers, was a justice of the peace, could not with propriety be received as evidence of the fact.

It would have been competent for the plaintiff, or his counsel, to have prayed a commission to some one designated therein to take his answers, as in other cases where depositions, or answers in Chancery are to be taken; if that course had been adopted, the authority conferred by the commission would have been sufficient, and no inquiry would have been permitted, whether by the laws of Georgia, the commissioner was competent to administer an oath.

The declaration sets out the defendant’s name at length, while the note adduced as evidence is subscribed with the initials only. We are inclined to think the note was sufficiently described to make it admissible, and that it should not have been rejected for the supposed variance. But upon the point previously considered, the judgment is reversed and the cause remanded.