
    Wm. J Graham et al. v. Wm. Benjamin et al.
    Where the answers to interrogatories propounded to a party in a suit on oath, are manifestly evasive, they may be taken as confessed against the party answering.
    Where the husband holds funds as belonging exclusively to his wife, without any knowledge on the part of the wife of his holding the funds for her, third persons who have a better right to those funds may recover judgment against the husband, but cannot against the wife.
    
      APPEAL from the District Court of Carroll, Snyder, J.
    
    
      H. Short and F. T. Merrick, for plaintiff.
    
      A. B. Caldwell and J. A. Collins, for defendants.
   The judgment of the court was pronounced by

Rost, J.

Rachel Graham, the wife of William Benjamin, was the sister of the whole blood of Francis W. Graham,, deceased. The brother and sisters of the half-blood claim from her and her husband their share of the succession, which they allege the defendants have received. There was judgment in their favor against the defendants in solido, and they appealed.

To prove that the defendants were in possession of the succession of F. W. Graham, the plaintiffs propounded interrogatories to them. Rachel Graham answered, denying any knowledge of the questions asked. William, Benjamin answered the interrogatories put to him; but the plaintiffs being dissatisfied with his answers, took a rule upon him to show cause why two of the interrogatories should not be taken tor confessed, on the ground that the answers were intentionally evasive, and not responsive to the questions put. On trial, the rule was made absolute, and the defendant Benjamin took a bill of exceptions.

The interrogatories thus taken for confessed are the principal evidence upon which the district judge decided the case. The defendants’ counsel admits that when there is a manifest evasion in the answer to interrogatories, the courtis authorised to take them for confessed, as decided in the case of Knight v. Murchison, 1 R. R. 31; but he contends that the defendant Benjamin answered the interrogatories in good faith; and that if his answers are not sufficiently definite to enable the plaintiffs to meet and disprove them, they should have filed supplementary interrogatories requiring more explicit answers.

The defendant Benjamin was interrogated as to facts peculiarly within his own knowledge. He 'admitted some of the facts charged, and manifestly evaded answering as to the others. We are of opinion the district judge did not err in ordering the interrogatories to be taken for confessed. They show that Benjamin holds the sums claimed of him as belonging exclusively to his wife, as the sole heir of Francis W. Graham ; and as he is the master of the personal actions of his wife, this is sufficient to charge him ; but as the funds did not originally come to his hands in right of his wife, and her answers to the interrogatories, stow that she was not apprised of her husbands acts in the matter, we are of opinion that judgment was improperly rendered against her.

It is therefore ordered, that the judgment against William Benjamin be affirmed. It is further ordered, that the judgment against Rachel Graham be reversed, and that there be judgment in her favor. It is further ordered, that one-half of the costs in both courts be paid by the plaintiffs and the other half by William Benjamin.  