
    
      Vaughn & Co. v. Garland.
    July, 1840,
    Lewisburg.
    (Absent Brooke and Parker, J.)
    Pleading — Interrogatories—Case Approved — A plaintiff in an action at law, wishing a discovery from the defendant, files written interrogatories under the statute, to which answers are given. At the trial, the defendant offers to read to the jury, as evidence, the interrogatories and answers, to which the plaintiff objects. Nevertheless the circuit court permits the same to be read, and a verdict and judgment are rendered for the defendant. The court of appeals, approving the decision in M’Farland v. Hunter, 8 Leigh 489, reverses the judgment of the circuit court, and awards a new trial, with direction that the answers to the interrogatories are not to be read, unless introduced on the part of the plaintiff.
    In an action of assumpsit in the circuit court of Fayette, between Clement Vaughn & Co. plaintiffs and William V. Garland defendant, the defendant having pleaded the general issue, the plaintiffs, on their motion, had leave to file written interrogatories to the defendant. At the trial, the defendant offered to read to the jury, as evidence, the interrogatories and the answers thereto, and the plaintiffs objected to the reading of the same. But the court overruled the objection, and permitted the said interrogatories and answers to be read by the defendant. To which the plaintiffs excepted.
    A verdict being found for the defendant, and judgment rendered thereupon, on the petition of the plaintiffs a supersedeas was awarded.
    Price for the plaintiffs.
    Wethered for the defendant.
    
      
      Brooke ana Parker, J., heard the argument of the case, though they were not present at the decision: and by a note furnished to the reporter by the president, it appears, that Parker concurred with the three judges who were present at the decision, and Brooke dissented from them, as to the propriety of setting aside the demurrer to evidence and allowing additional pleas to be filed ; and that Brooke concurred with Stanard and Cabeel, J., as to the sufficiency of the second additional plea, and the insufficiency of the replication, while Parker expressed no opinion on those points. — Note in Original Edition.
    
   TUCKER, P-

This case presents essentially the question decided in M’Farland v. Hunter, 8 Leigh 489. *In that case, it is true, the question raised by the bill of exceptions was not as to the admissibility of the interrogatories and of the answers to them, but as to their conclusiveness. This court however went into the question whether it was competent to the respondent to the interrogatories to introduce them, in invitum, as evidence in his favour. After two arguments, and taking twelve months to consider, a court of three decided unanimously in the negative. I have carefully reexamined the opinions in that case, and am fully satisfied with the decision. The result must therefore be a reversal of the judgment, and the award of a new trial, on which the answers of the defendant to the interrogatories filed in the cause are not to be read, unless introduced on the part of the plaintiffs.

PER CURIAM, Judgment reversed and new trial awarded.  