#### Henry B. Toomer, Jr. *vs.*Dr. John M. Righton.

Tried before his Honor Judge Axsow, City Court, November Term, 1886.

This was a process to recover the sum of $35, for eleven, tread of cattle, sold by plaintiff to defendant.

The plaintiff’s counsel produced interrogatories, of which the annexed are copies, which he proved had been served on defendant, with notice that he would be required, under the rule of court, to answer them. The plaintiff’s counsel also produced a letter from defendant, a copy of which is annexed.

The defendant’s counsel produced a letter from plaintiff, a copy of which is also annexed.

The defendant’s counsel objected to the interrogatories being received, because it did not appear that they had issued under the au. thority of the court; and that it ought to have appeared either before the issuing of the interrogatories, or at the time of trial, that the plaintiff was in possession of no common law evidence to sustain his case.

He also contended that the plaintiff had no right of action against the defendant, as the cattle, according to his own admission in his letter to defendant, were the property of the estate of Price. At all events, that the decree should not be for more than $80, the amount demanded in the letter of plaintiff.

I considered the interrogatories properly issued, under the rule of court; that it was not necessary they should have had the signature of the clerk, or the seal of the court; that it was not necessary it should be made to appear before the issuing of the interrogatories, or at the trial, as preliminary to their admission, that the plaintiff had no common law evidence. In this case there certainly was no evidence to sustain the plaintiff’s case, independent of the interrogatories. The defendant’s letter did admit an indebtedness, but for what, and to what, extent, does not appear. I thought the failure of the defendant to answer the interrogatories, entitled the plaintiff to a judgment, *pro confesso ;*in other words, that all the interrogatories must be taken as answered affirmatively.

In accordance with this view, I considered the plaintiff’s case made out by the acknowledgment of the defendant himself, and *264decreed for the plaintiff the sum of $85. the full amount of his claim. Though the plaintiff did, in his letter to defendant, mention the price of the cattle as $80, yet I thought he had a right to the defendant’s oath, whether it was not $85, and his failure to answer,in my judgment, admitted it.

The defendant’s counsel served me with the annexed notice of-appeal.

JACOB AXSON, *Recorder.*

*Grounds of Appeal.*

His honor the recordei, will take notice that a motion will be made at the next sitting of the Court of Appeals, to reverse the decree made in this case, or for a new trial, on the following grounds :

1st. It is respectfully submitted, that it was error in the court to allow the intern gato ties, which had been served on defendant, to be read in evidence. The said interrogatories were not issued by the authority of the court, and had neither the signature nor seal of the clerk ; and defendant was not legally bound to respond to them in the form in which they were served upon him.

2d. Because the plaintiff was not entitled to the oath of the de.-fendant, (in answer to the interrogatories,) inasmuch as he adduced in evidence on the trial, the letter of defendant, promising payment. And it is submitted, that it must appear to the court, that the plaintiff is remediless at law, before he can be entitled to equity jurisdiction.

3d. It is further submitted, that the court erred in decreeing for the plaintiff the sum of e'ghty-five dollars, when it appeared in evi, dence, by the written declaration of plaintiff, that the price con. traded to be paid for the cattle, was but eighty dollar's.

4th. Because the plaintiff bad no right of action in the property sold. The cattle belonged to the estate of William Price, of which James Adger is administrator.

ROBERT ELFE, *Attorney for Appellant.*

Ei/fe, *for Appellant.*

Simons, *for Appellee.*

Filed 14th February, 1837.

We are entirely satisfied with the judgment of the recorder. The motion is dismissed.

JOHN B. O’NEALL,

JOSIAH J. EVANS,

Ri CHARD GANTT,

A. P. BUTLER.

J. S RICHARDSON,