By the Court.
Lumpkin, J.,delivering the opinion.
This was an action of Trover, brought by Edward J. Dawson to recover of James Callaway four slaves.
In the progress of the case, interrogatories were filed by the defendant, to prove by the plaintiff that before, or since the commencement of the action (there is some discrepancy in the record upon this point), that he, Dawson, had parted with the title of the property. Service was acknowledged on the interrogatories on the 18th of March, 1858, by Adams and Knight, as plaintiff’s attorneys. At the August term thereafter, an order was taken, by defendant’s counsel, that the interrogatories be answered by the next term of the Court, or that the case be dismissed.
At the next term, of the Court, which was in February, 1859, the plaintiff moved to set aside the order of the preceding term, as having been improyidently granted, on various grounds, which were set forth in the rule. The Court sustained the motion, vacated the order of August, 1858, but directed the counsel of plaintiff to acknowledge service then on the interrogatories, which was done. It was further ordered, that the interrogatories he answered within ninety days, or, on failure to do so, to show cause, at the next term of the Court, why the case should not be dismissed.
*52At that term, the interrogatories being still unanswered, counsel for plaintiff showed for cause, why the case should not be dismissed: ist. Because the testimony, if obtained, was not pertinent; 2d. That the plaintiff’s continuances had not been exhausted, and until they were, he had the right to retain his case in Court, in order to obtain the testimony, if possible; 3d. Because he had exercised due diligence to procure the testimony.
The showing, being deemed insufficient by the Court, was overruled, and the case dismissed; and this is the decision excepted to.
Four Acts have been passed by the Legislature, authorizing discovery to be had at common law.’ That is, to allow either party to make his adversary a witness in the cause. The first was in 1847 (Cobb, 465.) By the terms of that Act, interrogatories were to- be filed for the party, plaintiff or defendant ; and if the Court was satisfied that the interrogatories were material and pertinent, and such as the adverse party would be bound to answer on a bill for discovery in a Court of Chancery, the same were to be allowed, and an order passed requiring an answer in sixty days, and upon failure to answer fully, the Court had the right to attach the party as for a contempt, dismiss his case, if plaintiff, or strike out his defence, if defendant, and award judgment as in case of default; or pass such other order, as might, in the discretion of the Court, be deemed just and proper.
The Act of 1850, amendatory of the Act of 1847 {.Cobb, 466), provides, that the order for taking the answer of the party, might be obtained in vacation as well as term time. The fourth section of the Act of 1850 declares that, when it shall be made to appear to the Court that the time allowed for the answer to the interrogatories to- come in, shall, from any cause, not be sufficient, the Court may allow such further time as the circumstances of the case may require. And it is worthy of remark, that by this Act, service was authorized to be made on the counsel of the absent party, which was done in this case — the plaintiff himself having left the country previously.
I forb.ear to comment on the Acts of 1854 (Pamphlet, p. 50) and of 1857 (Pamphlet, p. 56), both amendatory of the Act of 1847. It is quite apparent, in this case, that the interrogatories were filed under the Acts of 1847 an<I 1850. *53If this be not so, then the defendant is wholly at fault, for, under the Acts of 1854 and 1857, it was his duty to.sue out a commission and have the testimony of the plaintiff taken, and he has not taken the first step for that purpose. The interrogatories quietly repose in the clerk’s office, where they were deposited by the defendant, or his counsel. It will be well for counsel to scrutinize these different statutes carefully. The Acts of 1847 and 1850 are similar, as were the Acts of 1854 and 1857; but the two first are wholly unlike the two last.
We do not deem it necessary to examine very critically whether the orders passed by the Court were in strict conformity with the Acts of 1847 1850, and conceding that the interrogatories were material and pertinent, still the question recurs — was the Court right in dismissing the case? It will be remembered that the plaintiff never has been served personally with these interrogatories. For aught that ap-pears, he has no notice of them. His counsel have been making diligent inquiry to ascertain his residence, but have hitherto failed. Was this a bill in chancery for discovery, and the same diligence Had been used to find" the defendant to obtain his answer, would» the Court allow the bill to be taken pro confesso? We think not; and yet that formality would fall far short of dismissing the action. Why not have put the plaintiff upon terms, as the Court was authorized to do by the statute, either to concede the transfer of the title to the property in controversy, or have the action dismissed? This would have been more equitable and proper.
We think the rule administered by the Court was too rigid, and that the time should have been enlarged, so as to have enabled counsel to have procured the answers of Dawson.
JUDGMENT.
Whereupon, it is considered and adjudged by the Court, . that the judgment of the Court below be reversed, upon the ground • that the Court erred in dismissing the plaintiff’s case.