
    Alexander Hale v. Nathaniel Saunders.
    When plaintiff propounds interrogatories on facts and articles to defendant, and in his answor lie admits only a part of the demand, plaintiff may take a nonsuit, or discontinue tho suit as to the residue.
    Plaintiff has the right to discontinue the whole or any portion of his demand, so long as there is no reconventional demand filed by defendant.
    from the District Court of the Parish of Rapides, Cullom, 3.
    
    
      W. P. Shropshire and Hyman & Cazabat, for plaintiff. W. B. and J. C. Lewis, for defendant and appellant.
   Merrick, G. J.

The plaintiff brought suit against the defendant for $1013, for cotton shipped and sold by him during' the years 1854,1855 and 1856.

The plaintiff annexed the accounts of certain sales rendered Saunders by his merchants in New Orleans, and interrogated him as to Ms indebtedness to the plaintiff under them. Saunders admitted only a part of the accounts of sales produced, to be sales of Hale’s cotton.

The plaintiff thereupon proposed to take a judgment of nonsuit or discontinue as to the residue of his demand. This being objected to by defendant’s counsel, and the objection being sustained by the court, plaintiff excepted. Judgment was rendered in his favor for only $368 29, and he appeals.

"We are of the opinion, that the plaintiff had the right to discontinue the whole or any portion of his demand, so long as there was no reconventional demand filed by the defendant. The unsatisfactory or even adverse answers of the defendant to the interrogatories propounded by this plaintiff were only evidence, and if the plaintiff supposed he could supply the defects of such evidence or rebut the same, he had the right to dismiss his demand in order to renew his suit for such portion of his claim under more favorable circumstances.

The defendant and appellee urges the plea of prescription in this court. But we have not found any answer praying for an amendment of the judgment in his favor. We cannot, therefore, consider the plea, so far as it applies to the portion of plaintiff’s demand insisted on and in judgment. As to the residue of plaintiff’s demand, the plea of prescription cannot prevent plaintiff from dismissing the same.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be amended, so as to dismiss all of plaintiff’s demand contained in his petition, as in case of a nonsuit, except the account of sales of the 18th of Januaay, 1854, of two bales of cotton marked A N ; the account of sales of four bales of cotton, 20th March, 1856, and of one bale of cotton of date July 26, 1856, amounting in the aggregate to the sum of $368 29 ; and it is further ordered, adjudged and decreed, that the judgment of the lower court so amended be affirmed, the defendant paying the costs of the appeal.  