
    Wallace & Wilbourn v. John Norvell.
    Columbia,
    Dec. 1828.
    A party in summary process cannot compel the opposite party to answer interrogatories, if it appear, that there exists legal evidence of the matters inquired of.
    Tried before Mr. Justice Gaillard, at Union, Fall Term, 1828.
    This was a summary process upon a promissory note for twenty-four dollars. The note was admitted, but payment was resisted on the ground, that it had been given for a gaining deb}:. Spencer Norvell, a son of the defendant, was sworn as a witness, and testified, that he was at the store of the plaintiffs on the day of the date of the note, and saw his father play at cards with the plaintiffs, and that a.t the conclusion of the game he heard it stated, that his father had lost the sum specified in the note; that the plaintiffs required a note to be given for the amount, and his father gave one, which in the size and colour of the paper, resembled that now sued on. Another witness was introduced, who proved that defendant was in the habit of gambling at the plaintiffs’ store.
    The defendant then required the plaintiffs to answer interrogatories, which had been previously served on them, relating to the consideration of the note. This the plaintiffs resisted on the ground, that it appeared by the witness introduced, that there existed legal evidence of the matters inquired of; besides which, there was a subscribing witness, who had not been called.
    The presiding Judge sustained the objection, and gave a decree for the plaintiffs. The defendant now moved to reverse the decree, on the ground, that the evidence was sufficient to establish that the note had been given for a gaming debt. And for a new trial, on the ground, that plaintiffs should have been compelled to answer the interrogatories served on them by the defendant.
    O’Neall, for the motion.
    Herndon, contra.
    
   Colcock, J.

delivered the opinion of the Court.

The rule applies only to those cases where a discovery is sought. In eases where the party is in possession of evidence to

prove his case, or sustain his defence, he has no claim upon the conscjeilce 0f j]jg adversary. And this, I think, has been the invariable, practice since the case of Dillon v. M’Cue, 2 Bay, 280, in which the Court say, that “ both parties in the summary jurisdiction of the Court have a right to avail themselves of all matters, botl) in law, and in equity: that is, as long as the common law rules of evidence will bear them out, they must be bound by them in the first place; and where they fail, the parties may resort to equitable principles to supply the defects of the common law. That when there is no evidence to be procured, the defendant has a right to call upon the plaintiff to answer touching any matter known only to the parties themselves ; and on refusal to answer, the matter is to be taken pro confesso." In the case of Brown v. Collins, Ib. 326, the same doctrinéis maintained, and as that was a plain case of debt, susceptible of other proof, the Court decided, that the defendant was not bound to answer. So in Addison v. White, 2 Mill, 369, it was held, that “ the plaintiff has a right to call on the defendant, provided, he cannot prove his case in any other legal way.” The presiding Judge then very properly refused to compel the plaintiffs to answer the interrogatories in the present instance. But we are of opinion that the motion should be granted; for no reason is assigned, and none appears, to shew why the evidence of the son of the defendant was rejected; and his testimony, if believed, proved that the note was given for a gambling debt.

Motion granted.  