
    
      LEWIS vs. DECOUX.
    
    Appeal from the court of the fourth district.
    A party interrogated on facts and articles, is not compelled to answer categorically, if he swears that his memory will not permit him to do so.
   Porter, J.

delivered the opinion of the court. The plaintiff averred, that he had made a parol contract with the defendants, for a lot of land, and that they had refused to comply with it. He annexed interrogatories to his petition, calling on them to say, whether they had not entered into such agreement with him.

Eastern Dis'ct

April, 1827.

One of them answered he had not. The other replied that he had; that though he could not perfectly recollect whether it was such as the plaintiff had averred, he believed it was, in substance, the same. He added, however, that at the time of the contract, he was a minor, and that he had since sold the premises to another person.

The petitioner excepts to this answer, because it was insufficient, evasive, argumentative, and not categorical, But the court overruled the objection.

We think the court did not err. The answer is not evasive, for it virtually admits the contract, and a man who does not recollect positively, it not obliged to swear so. The recollection of the defendant, it appears, did not permit him to make a categorical answer. The answer to the interrogatories, and the answer to the petition are put in together, and that part which is argumentative, evidently belongs to the defence set up to the action. This practice certainly tends to introduce confusion; but as no motion was made is the court below, to separate them, and as we do not believe they had any effect on the merits of the case, we cannot remand the cause on that ground.

Duncan, for the plaintiff, Preston, for the defendant.

The evidence clearly supports the defendant’s plea of minority, and we think there was no error in the verdict of the jury, nor in the judgment of the court. It is, therefore, ordered, adjudged, and decreed, that it be affirmed with costs.  