
    John Kennedy & another vs. George H. Gooding & another
    At the trial in the court of common pleas, of an action brought before a justice of the peace upon a bond for the prison limits, the plaintiff may prove any act of escape specified in his bill of particulars filed before the justice, although not relied upon at the trial there.
    The right to file interrogatories in the court of common pleas to the adverse party, in a civil action commenced before a justice of the peace, is not affected by having filed and then waived such interrogatories before the justice.
    Placing an action upon the trial list is no waiver of the right to claim a default for failure to answer interrogatories under St. 1862, c. 312, §§ 61, 72.
    Action of contract, commenced before a justice of the peace, upon a bond for the liberty of the prison limits. The plaintiffs filed a bill of particulars before the justice, alleging an escape on each of three days. The justice gave judgment for the defendant; and the plaintiffs appealed to the court of common pleas, and at the term of the entry of the appeal filed in the clerk’s office, under St. 1852, c. 312, § 61, interrogatories to the defendants, concerning all said alleged acts of escape, and immediately gave notice thereof to the defendants.
    At the calling of the docket on the second day of a subsequent term, the plaintiffs’ attorney caused the action to be placed upon the trial list, and on the sixth day moved that the defendants be defaulted because they had not answered the interrogatories; and Sanger, J. ordered a default accordingly, and signed a bill of exceptions, in which the defendants’ objections and the rulings of the court thereon were thus stated :
    ‘‘The defendants’ counsel objected, and contended: 1st. That the plaintiffs could not try in this court any other case, or rely upon any other act of escape, than that which they elected to prove before the justice ; and therefore the defendants were not bound to answer interrogatories relating to any other act of escape. But the judge ruled that the plaintiffs might prove any act of escape covered by the bill of particulars, and the defendants were bound to answer any interrogatories relating to such escape.
    
      
      “ 2. That as the plaintiffs had filed interrogatories before the justice, more especially as they had been formally waived after filing, they had no right to file further original interrogatories in this court, and the defendants were not bound to answer the same. But the court ruled that they had such right, and that the defendants were thus bound to answer.
    “ 3. That the plaintiffs, by placing the action upon the trial list, waived their right, if any, to answers to the interrogatories, or at least their right to claim a default, without a motion for an order to answer, made a reasonable time before the case was reached for trial. But the court ruled otherwise.”
    
      F. Hilliard, for the defendants.
    
      W. Colburn, for the plaintiffs.
   The Court overruled the exceptions.  