
    BEHAN vs. HITE.
    Eastern Dist.
    
      May, 1839.
    APPEAL FROM THE COURT OP THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING.
    After an answer to the merits, the plaintiff cannot proceed to take judgment ex parte, without setting the case for trial, because the defendant neglected to answer interrogatories, which were taken for confessed. He can only avail himself of the confession as proof on the trial.
    This is an action against the defendant for the price of a slave. The plaintiff propounded interrogatories to the defen-ant, touching the contract, price and conditions, upon which the slave was sold and delivered to the defendant. The petition was filed the 3d of April, 1838, and an answer containing a general denial, was put in on the 1.7th of the same month. On the 20th April, the defendant having neglected to answer the interrogatories propounded to him, and annexed to the petition, the plaintiff proceeded to take judgment ex parte, on the interrogatories being taken as confessed.
    
    The defendant appealed.
    
      Jones, for the plaintiff.
    
      I. W. Smith, for the defendant and appellant.
   Eustis, J.,

delivered the opinion of the court.

After an answer filed to the plaintiff’s petition, the court taking the interrogatories annexed to the petition for confessed, rendered a judgment against the defendant. It does not appear that the cause was fixed for trial, but from the record, we infer, that the judgment was rendered entirely ex parte, on the neglect of the defendant to answer the interrogatories.

It is true, that on the default of a party to answer interrogatories propounded to him, under the rules laid down in the Code of Practice, the interrogatories are to be taken for confessed.

But this does not give the parly who wishes to avail himself of the confession, any other right than to make use of it as proof on the trial of the cause. It gives him no advantage as to the trial of the case over any other suitor.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and the cause remanded for further proceedings ; the appellee to pay costs.  