
    J. E. Walker vs. J. J. Berry.
    Defendant in sum. pro. "being served -with interrogatories to answer “whether he had purchased the goods charged in the account sued on, on credit, and at the prices charged;” answered, that he had, hut that he had paid the account; — Held, that plaintiff was entitled to a decree — defendant’s answer as to the payment not being evidence for him.
    BEFORE WHITNER, J., AT SUMTER, FALL TERM, 1854.
    
      Sum. pro. on an open book account. The defendant was served with the following interrogatories :
    “ 1. Were the articles charged in the within account, purchased by you from the plaintiff, or his clerk, on credit?
    “ 2. If not, then state if any of the articles, and which of them, were purchased by you on credit ?
    “ 3. Are the prices charged those you agreed to pay?
    “ 4. Are the prices charged reasonable ?
    “ 5. If not, then state what would be reasonable prices for the articles charged ?”
    The defendant answered as follows:
    “ The defendant, James J. Berry, being called upon to answer, on oath, certain interrogatories in the above stated case, personally appeared before me, and made oath as follows.:
    “ 1st. The articles charged in the account (the cause of action) were purchased by this defendant from the clerk of the plaintiff on credit. The last item is interest, but that he has paid up the whole account.
    “ 2nd. Answered*in answer to first interrogatory.
    
      “ 3rd. The prices’ charged are those agreed to be paid by this defendant; but no interest was agreed to be paid.
    “4th. The prices charged are reasonable.
    “ 5th. Answered above.”
    His Honor decreed for the defendant; and the plaintiff appealed, and now moved this Court to reverse the decree, on the ground that the answer of the defendant, as to the payment, not being responsive to any interrogatory propounded to him, his Honor erred in treating it as evidence.
    
      Richardson, for the motion.
    
      Blanding, Be Saussure, contra.
   Per Curiam.

In this case it is only necessary to refer to Clark vs. Meek, 2 Bail. 391. According to the rule settled by that ease, the defendant’s answer, that he had paid the debt, could not discharge him.

The decree ought therefore to have been for the plaintiff. But inasmuch as it is alleged here, that the defendant, if the Court had not ruled in his favor, might have given other evidence, a decree will not be now rendered for the plaintiff. Another opportunity of discharging himself properly will be given to the defendant. A new trial is therefore ordered.

O’Neall, WaRdlaw, Withers, Clover, and Munro, JJ., concurring.

JSTew trial ordered.  