Tiernan v. Noe

Morphy, J., delivered the opinion of the court. Suit being brought by plaintiffs on a note of hand executed to their order by defendant. The latter admitted his signature, pleaded want of amicable demand, and failure of consideration. To make out this plea the defendant put interrogatories to plaintiffs, a late firm of this city. Two of the partners being absent from the state, the interrogatories were answered by Charles Tiernan, in the name of the firm* under a commission issued from the court below, at the instance of defendant. These answers show a good and valid consideration for the note sued on. The appellant has made two points in this court, to wit: 1. That the answers of Charles Tiernan, one of the firm* are not evidence, being unaccompanied by those of his partners. [121] 2. That, those answers ought not to have been admitted by the judge below, because defendant had not been notified of the time and place at which said interrogatories were to be answered. I. When a firm is interrogated, an explicit and categorical answer by one partner appears to us sufficient, unless the several answers of all its members have been expressly called for, which-has not been done in this case. II. The right of being present when interrogatories are answered before a justice of the peace, is secured only to the party who prays that his adversary be ordered to answer in open court. The party interrogated, if living in another parish, is not bound to repair to that parish where the suit ¡spending; but the party who puts the interrogatories must be notified when and where they are to be answered, that he may be present if he sees fit. Code of Practice, articles 351 and 352. No such prayer was made by defendant. The damages prayed for by appellee cannot be allowed, the appeal being devolutive, and no proof having been made of any amicable demand before the institution of this suit. It is, therefore, ordered, that the judgment of the District Court be annulled, avoided and reversed ; and that plaintiff's do recover of defendant four thousand two hundred and twenty-nine dollars and fifty-two cents, with ten per cent, interest per annum, from the first of July, 1837, until paid, and the costs below made after the appearance of defendant, inclusively. The remaining costs in the District Court, and those of this appeal, to be paid by plaintiffs and appellees.