
    
      GABAROCHE vs. HEBERT & AL.
    
    The answer of the plain-gatories* may deraxcmimis-minewitness-es
    An answer tories^mustbe categorical, but it is immaterial in what language the an-
    dofínot'prc-dorseethfróm suing on it and ,ng'
    Appeal from the court of the fourth district, * the judge of said district presiding,
   Porter, J.

delivered the opinion of the court, This action is brought against the maker and indorser of a promissory note. The petition states that the defendants are indebted to him, # by one of them making his note in favor of the J , . . . . other who indorsed it: that the said note was duly protested for non-payment, of which the indorser had notice, which facts will more fully appear by the note and protest annexed as part - . the petition.

The answer admits the execution and in-dorsement of the note as alleged; but avers that the rnr.ker was indebted to one Tate in the sum of $1300 or thereabouts, and for the pose of paying the same, an obligation was _ . . , made in favor of the indorser for $1800 with a view to have it negotiated. The balance between the sum due and the amount of the note to be returned to the payor. That some time after the execution of this instrument the present plaintiff presented himself as the holder and proprietor of it. That the maker explained to him the circumstances under which it had been given, and refused payment unless credit for the excess was allowed. That the plaintiff promised to make inquiry in relation to the demand of the defendant, and if found true that credit should be given. Upon which the maker, relying on the honesty and good faith of the plaintiff, made several payments» and gave the note on which this suit is brought for the balance, under the stipulation however that the difference between the sum originally due by Tate and the first note for $1800 should be deducted from it.

The answer avers further, that the plaintiff cashed the note for $1800, at a discount greater than the legal interest, and demands credit for the excess.

With these admissions, there is a general ® denial of all the allegations in the petition, and tjie answer concludes by averring that on the . plaintitt’s own shewing he is not entitled to judgment.

Annexed to the defence were the following interrogatories, the materiality of which were sworn to, and their answers ordered by the court.

1. Are not the facts stated in this answer true, as far as they come within your knowledge?

2. Say which of them are not true that are within your own knowledge?

3. State which of them are not within your own knowled ge ?

4. Do you know, and if you do, say at what discount the note of $1800 was discounted ?

To the answers filed to these interrogatories the defendant excepted.

1. Because the commission to take said answer did not issue in the proper form, and should not have been a general commission to examine all witnesses.

2. Because the answers to the first and fourth interrogatories are insufficient and evasive.

I. The first objection cannot be supported. J rr We can discover nothing in the form in which .... , . . the commission issued, that renders the testimony taken under it illegal. A commission to examine all witnesses, will authorize the examination of one, for in that light must the plaintiff be considered when the defendant calls for his testimony.

II. The answer to the first interrogatory appears to us to be full and explicit; but that given to the fourth requires a more particu* lar examination.

The question asked is, “Do you know, and if you do, say, at what discount the note of $1800 was discounted ?” The answer is, “I took the note of $1800 in payment of a debt as value to the amount specified in its face.”

The judge of the first instance thought the answer evasive, but he refused to sustain the exceptions; because taking the interrogatory Us confessed it afforded no matter of defence of which the defendant could avail himself The reasons for the opinion are spread at length on the record. That on which the decision is principally based is the fact of the plaintiff having renewed the note. The judge thought that bv doing so the validity of the first note was acknowledged. That the defence of usury s¡10Uid iiave been made to it: that the plaintiff by the acquiescence of the defendant had lost his recourse against the endorser, and that it was now too late to urge this objection.

We have come to the same conclusion with the judge a quo, but for a different reason. We do not think the answer evasive. The plaintiff is interrogated if the note was discounted, and at what rate? He answers that he took it in payment of a debt for the value specified on its face. This certainly is as complete a negative as could be given to the interrogatory ; for if he took it in payment, for the value expressed, then it was not discounted. Reliance has been placed on that article of the code of practice, which requires a categorical answer to interrogatories. Whenever the question put, can be affirmed, or denied, the answer must furnish an affirmance, or denial. But the law requires no particular language in which that affirmation, or denial, should be couched. It is sufficient if either one or other clearly and necessarily results from the answer made. That there was necessarily a ne-gatiye here, we have no doubt If a party ^ were interrogated, whether he was or was not . , in New-OrIeans,on a particular day, it surely would be equivalent to a direct denial if he should reply, that on the day stated he was in Philadelphia.

It has been objected, that it is not stated in the petition that demand was made at the place where the note was made payable, and that such an averment andp roof to support it, were necessary to enable the plaintiff to recover. If the petition was defective in this point, and the proof failed to establish the fact, the objection would be a good one; but on examining the pleadings we find that the protest of the notary is made a part of the petition, and that the protest was given in evidence.

In the instrument making a part of the petition, there is an express averment, that demand was made at the place where the note was payable. There is therefore no ground for the objection that there is no such demand set out in the petition.

Another objection has been taken, that the plaintiff’s endorsement is on the back of the note; but that endorsement is in blank, and it been decided in this court that such en* dorsetnent is not a bar to the holder’s suing - . and recovering on it. Sprigg vs. Cuney's heirs, ante 253.

Hiriart for plaintiff—Pierce for defendants.,

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed with costs.  