
    John F. Walker, Administrator of Davis, vs. William Mathaney.
    
      In a proceeding by summary process, defendant was required to answer on interrogatories, whether he had made his mark to a note, and whether he justly owed an account; copies of which were filed with the process; and1 held that a decree, for the amount of the note and account was properly given against Mm, on Ms neglecting to answer.
    
    This was a summary process, upon a note and account, copies of which were endorsed on the copy proces s, together with the following notice, viz: The defendant will take notice, that he will be required, upon the trial of this case, to answer the following interrogatories upon oath, or judgment will be given against him by default: . -
    1st. Interrogatory. Did you or did you not make your mark to a note, of which the above is a copy? if so has or has not that note been paid by you?
    2d. Interrogatory. Is the above account just or unjust; if ’ unjust state the reasons why it is so? On the trial the defendant failed to answer the' interrogatories, and the plaintiff’s counsel moved for a decree without offering any testimony, which was opposed on the part of defendant, on the ground that the nature of the demand was not such as to authorize the plaintiff to call for the oath of the defendant, or if it was, that according to the rules of this court and the laws of the state, the plaintiff was not entitled to a decree, without offering, any evidence, merely otj the failure of the defendant to answer the-interrogatories. . Tne-presiding judge, however, gave a decree for the plaintiff fo; the amount of the note and account, and the defendant moves; 1st.’ For a non suit, and if denied, 2d. For a new trial.
   The opinion of the Court was delivered by

Mr. Justice Gantt.

By the act of 1769, (Pub. Law's, 270,) the common law courts are invested with authority to try and determiné, without -a jury, in a summary way, on petition, all causes cognizable in the said courts, for any sum not exceeding £20 sterling, except where the title of lauds may come in question, in which suit, the plaintiff and defendant shall have the benefit of all matters, in the same manner, as if the suit were commenced in the ordinary* forms of common law or equity, and by the 36th rule of the court of common pleas, if the plaintiff shall, in a case of summary process, desire to have the benefit of the defendant’s oath he shall state in writing the points to which he shall require his Oath, and serve him with a copy thereof, with notice of such his intention, and defendant may either give his answer in writing, or ore tenus in open court.

The defendant in this case, having been duly notified of the plaintiff’s intention, under the rule, to avail himself of his oath,- and having failed either to answer the interrogatories propounded in writing, or ore tenus, in open court, judgment was given against him, pro confesso, for the. amount of the note and account. Could either have been established by the rules of the common law, then recourse to the defendant would have been unnecessary, and it is conceived that the rights of the defendant can never be compromited,, when it rests with himself to say whether he owes the amount sued for or not. His refusal therefore to answer, in a case so simple, and involving not the slightest complication, could leave no other impression but that the sever-: al accounts were justly owing by him to the' plaintiff, and that his neglect to answer wms to be construed into a tacit and satisfactory acknowledgment of the same. Had the demand been for damages, arising from a trespass committed, or in any other •manner necessarily requiring evidence to satisfy the mind of the court as to the extent of injury sustained; in such case, the plain-ififf must have enforced his requisition on the defendant by a® attachment for the contempt. In this case, no such necessity existed and a final decree was properly awarded against; him. The motion is, therefore refused.

Patterson, for the motion.

Gantt Trotti, contra.

Bay, Nott, Colcock 8f Johnson, Justices, concurred.  