
    GRAY & AL. vs. GENTRY.
    Whether one may be interrogated as to the genuineness of his signature?
    Suit on a promissory note, with a subscribing witness. The petition contained an interrogato- ry, by which the defendant was required to say, whether the signature, at the foot of the note, was not in his hand-writing.
    pagematter
    Hopkins, forthe defendant.
    The interrogatory is inadmissible. This mode of probing the defendant's conscience, can only be resorted to, where a fact cannot otherwise be prove.
    In Read vs. Bailey, it was said by Lewis, J. that the reason of the law, in permitting a party to resort to the conscience of his adversary for a disclosure of factsm is founded in necessity, and is intended to apply only in cases where the evidence sought for, is wholly in the power of the party, called upon to disclose. Ante 76.
    In Randle's adrs. vs. Judice, and Hart & al. vs. Bourgeois-the Court, Lewiss, J. alone, ruled that the defendants could not be called upon to answer interrogatories, concerning the genuineness of the notes.
    The party, who acknowledges he has no proof, or an insufficient one, may require the oath of his opponent. 1 Domut, l. 3, t. 6, sect. 4.
    As it often happens that he, who has to prove a contested fact, has neither writing, nor witnes~-ses, nor sufficient presumptions, the confession of it is obtained from the mouth of his adversary. Id. sect. 5.
    third manner of obtaining a party's con-~ess~n, is~ where he who cannot have the proof of a fact, which he alledges, refers himself to the oath of his adversary. Id.
    Our statute points out the mode in which a contested signature to a note, is to be prove. In case the party disavows his signature, proof of it may be given by at least one credible withess, de-daring positively that he knows the signature, as having seen the obligation signed; or the signature iajust be ascertained by two persons having skill judge of hand-writing, after having compared it with papers, acknowledged to have been signed by the party. Civil Code, 306, art. 226.
    In this case, it clearly appears that the plaintiffs have proofs within their power-they cannot, therefore, call on the defendants to supply them with evidence. On general principles, therefore, the interrogatory is improper. Farther, the law has made a special provision for this case. It appears there is a subscribing witness, he, therefore, must be brought forth-if there were none, a report of experts, or the answer of the defendant, might be the proper criterion.
    Baldwin, contra.
    Our statute has expressly provided that, " when any plaintiff shall wish to " obtain a discovery, from the defendant on oath, "such plaintiff may insert, in his petition, perti"nent interrogatories." 1805, ch. 26, s. 7.
    
      It is not necessary that the plaintiff should need, it suffices that he wishes such a discovery.
    The statute has but one exception-provided that the interrogatory does not charge the defendant with any crime or offence.
    The Civil Code, 316, contains nearly the same provisions. It provides for the case, in which the judge may wholly, or in part, dispense with the answer of the party interrogated, viz. when the interrogatory is impertinent, and has no reference to the issue. Id. art. 262. In all other case, it seems the party must answer.
    As the law often gives concurrent remedies, there is no incongruity in allowing concurrent means of proof.
   By the court.

A party, with an ill grace, complains that his adversary constitutes him a judge in the cause: and a case can hardly be imagined, in which a defendant may suffer by being compelled to acknowledge, disown, or declared that he does not recognise, a paper, apparently subscribed by him.

Our statute havingexpressed the eases, in which a party may require his adversary to swear, the Court cannot admit the exception contended for, on the supposition that it exists in France. Do-mat cites no authority, and dDes not positively re- cognise, though the language he uses impliedly admits, it.

IT would not be admitted in any of the courts of equity in the United States, and it is clear the Roman law precluded it: Ait Praetor: eum a quo jurzsjurandun2 petetur, so/vere aut jurare cogam: Alterum itaque eligat reus: aut solvat out juret: sinon jurat, solvere cogendus erit a praetore. ff lib. 12, tit. 2, l. 34, s. 6.

However, as it is advanced by a gentleman of the bar, that, in two eases, the objection prevailed, and this is not contradicted, the case must stand over for further argument, and the opinion of a full bench.

Cur. Ad. Vult.  