
    A. W. Harrell v. H. Kemper.
    1. Discovery.—Defendant, in support of a valid defense set up in his answer, filed therewith interrogatories to support the same, which were not answered : Held, Error in the court to refuse to take such interrogatories as confessed. STor is the error cured by the fact manifest in the record that the same facts were sustained by other testimony.
    2. Pleadings—Practice.—In the absence of a replication setting up facts in avoidance of a good defense pleaded in the answer, it is error to admit testimony avoiding the defense.
    Error from San Jacinto. Tried below before the Hon. J. E. Burnett.
    April 12, 1871, H. Kemper sued A. W. Harrell, jr., on , a promissory note -for $1,000, gold, alleged to have-been exr ecuted by Harrell on January 15,1870, to one Mrs. Haden, in part payment for a tract of land, and by her transferred to plaintiff, being secured by vendor’s lien upon the land.
    The defendant pleaded (1) general denial; (2) denial that the note was' in part payment for the land,; (3) a plea of accord.and satisfaction,,in that the pote had been discharged by giving in lieu thereof several small notes; (4) fraud in obtaining the note; and in addition to his answer.- Harrell filed interrogatories for discovery to Kemper, under art. 3748, Paschal’s Dig., in, support of his last two defenses.
    No replication was made by plaintiff, nor were the interrogatories answered. : On the trial- the court refused to take the interrogatories attached to-, the answer as confessed. Plaintiff read in evidence the note described imthe petition!
    J. E. Haden, for plaintiff, testified “ that the note sued on (the same being then shown him)-was given for, part pf the purchaserinoney of the tract of. land described in the petition. - The original note,, of which the one in evidence was a, true copy, was destroyed by witness, the plaintiff having accepted fourteen small notes executed by Harrell (defendant) as substituted claims for said note; that the small notes executed by Harrell to Kemper,were signed.by Harrell on Sunday; that .afterwards Kemper wished to trade the notes, (the small notes) to witness, who was then agent for an insurance company. Witness told Kemper he would try to get the conipany-to accept the. claim if he would get Harrell to execute one note, a true copy of the,original $1,000 pote; that .Harrell executed the note sued on in lieu of the said note, and himself took the fourteen;small notes. Witness, tried fo get,;the, insurance, company,to accept. the same, hut they refused to do so. The plaintiff and;defendant had other- pecuniary, transactions; -I do not -know, what, at this time. The. note sued on-was -executed by Harrell in the,presence of witness and plaintiff, and was.-in-.lieu of the fourteen small notes.”
    
      The' defendant then introduced three judgments in favor of W. Kemper, the plaintiff, against defendant, rendered •before a justice Of the peace.April, 1871, and each for $98.73 and costs. The defendant, by bills of exceptions, saved objections to thé court refusing to take his interrogatories as confessed, and in admitting Haden’s testimony as to the note being executed for the. land,... 1 .
    Harrell brings the cáse by writ of error to this court.
    
      Hancock, West & North, for appellant.
    
      Jackson & Jackson, for appellee.
   Roberts, Chief Justice.

The court erred in not allowing the interrogatories propounded by Harrell to Kemper to be taken as confessed; because they were attached to his answer, •filed in the case, and were pertinent to support a good defense pleaded, that the note sued on had been settled and discharged by giving in lieu of it a' number of small notes.

It may be said that the evidence of Haden, offered by .the plaintiff below, Kemper, established for the defendant, Harrell, the facts sought to be established by the answers of Kemper, and thereby cured the error of the Court in not allowing the interrogatories to be taken as confessed, and that a verdict and judgment was rightly obtained for Kemper by the additional evidence of Haden in avoidance of the effect of such answers, if they had been made, as sought by Harrell. It may, however, well be objected to this that the'facts in avoidance of the defense, as proved by Haden, "were not alleged by Kemper in avoidance of Harrell’s defense as pleaded by him, and that if he had had notice of them by their being plead, he might have set up and established in proof a defense of them.

From a view of the whole of thé evidence, it is probable ■ that the justice.of the case was reached, still not in such manner as to "make it certain that' the error of the court pointed out was entirely immaterial, which would have to he held to sustain the judgment.

Judgment reversed and cause remanded.

Reversed and remanded.  