Phillips v. Carr , 13 La. 71 ( 1839 )

Martin, J.,

delivered the opinion of the court.

This is an action by the payee of a promissory note. The defendant pleaded, that the plaintiff was not the owner of the note ; the general issue; and the failure of consideration, to the knowledge of the plaintiff.

He prayed that the plaintiff might be ordered to answer, on oath, the two following interrogatories. 1st. Are you the owner of the note? 2nd. What was the consideration thereof? On motion of the plaintiff, the first interrogatory was stricken out by the court, and the second was not answered.

The defendant objected to the cause being set for trial, on the ground that the second interrogatory was not answered. The objection was overruled, judgment was given for the plaintiff, and the defendant appealed.

His counsel complains that the court erred in striking out the first interrogatory.

The answer alleges that the note was given to Barnett, as the consideration of a sale of horses, and that the plaintiff had no interest therein, but endorsed it merely as the surety of the defendant. That the horses proved worthless, from redhibitory vices and diseases, so that the consideration of the note failed.

The defendant had an interest to show that Barnett, the vendor, was still the owner of the note, and that he had handed it over to the plaintiff to bring suit thereon as a bona fide holder, and thus deprive the defendant of the plea of failure of consideration.

The refusal or neglect of the plaintiff t.o answer the second interrogatory, presented no objection to the cause being set down for trial. The defendant’s counsel has not contended that this refusal or neglect was an admission of the absence • t . * .111. of consideration, and entitled him to judgment; had he done so, the case would have presented a question, the consideration of which his silence relieves us.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided-and reversed, the first interrogatory reinstated, and ordered to be answered, and the case remanded for further proceedings according to law; the plaintiff and appellee paying the costs of the appeal.