
    No. 101.
    J. B. Kirtland v. Wm. H. Harris.
    Where the defendant, sued as endorser on a promissory note, propounds interrogatories to plaintiff, a non-resident, on facts and articles, the law requires that they must be answered under a commission, and if the plaintiff make answers responsive to the questions asked, without a commission, they will be excluded on trial.
    Where a commission has issued according to law to take the answers of plaintiff, a non-resident, to interrogatories, and it is not shown that sufficient time has not elapsed for the return of the commission, the fact that it is not returned is not good ground for a continuance of the cause.
    APPEAL from the Distict Court, Parish of Carroll, Farrar, J.
    
      Sparrow t& Montgomery, for plaintiff and appellee.
    
      W. G. Wyly, for defendant and appellant.
   Howell, J.

The defendant is sued as payee and endorser of a bill of exchange. The answer is a general denial, which afterward is amended by propounding interrogatories on facts and articles to plaintiff. At the trial defendant moved for a continuance on the ground that the commission to take the answers of plaintiff, residing out of the State, had notbeen returned; the counsel of plaintiff then offered, as a substitute, the answers of said Kirtland, taken without a commission in Memphis, Tennessee, responsive to the interrogatories, which the Court received in evidence, and defendant reserved a bill of exceptions.

The admission of the answers so taken was irregular. The statute of 10th February, 1843, requires specially, “ that when the party interrogated resides out of the State, his answers shall be taken by commission.” It is the duty of his counsel in the cause to obtain the commission for the purpose, and have it executed according to law.

But we do not think the bill of exceptions presents a legal ground for a continuance. It does not appear that sufficient time had not been allowed for the party interrogated to answer. What his remedy was, under the circumstances, is not for us to suggest. All the advantage he can now claim at our hands is to exclude the answers upon technical objections, as the plaintiff seems to have intended honestly to answer the interrogatories.

Without these answers there is sufficient evidence to make out plaintiff’s case. The bill of exchange, the protest and the evidence as to the notice of the dishonor, establish defendant’s liability as endorser. We are fully satisfied that he had notice, as he acknowledged the receipt of the letter containing it. Judgment affirmed.  