delivered the opinion of the court.
The plaintiff complains that the defendant, by various pretexts, fraudulently obtained from him a conveyance of two slaves, of the value of two thousand dollars, he being intoxicated at the time; that the defendant executed a will, bequeathing said slaves to him, and also a lease, which were written by one Jose del Hosté, and signed by two witnesses; that, becoming sensible of his folly the following day, he called on the defendant, and desired the act might be annulled; that she promised to do this in a few days, and that he gave back the will and lease, the existence of which she now denies.
The answer of defendant denies these facts.
A supplemental petition was filed, in which the plaintiff required the defendant to answer certain interrogatories. *186The defendant moved the court to strike out the .eighth and njn(h of these interrogatories, on the ground that there was no allegation in the petition of the existence of a counter le,-,er > this the court ordered. There was judgment for the defendant, and the plaintiff appealed.
Where fraud )-ectCandSpositidve evidence's sel-tained. Circum-hcommonly-di that can be had; and every cir-cum stance be-to ferrit^uíthe fraud.Though not clearly expressed, we understand the petition to state, in substance, that the will and lease were given by way of counter letter; and that the interrogatories were improperly stricken out.
As by an answer to a preceding interrogatory, the defendant had denied the execution of the will and lease, it might appear useless to require an answer to the two interrogatories in question ; it is therefore proper to state the reasons which prevent us from coming to the conclusion that they were immaterial.
The fourth interrogatory is in these words; “Were or were there not two acts in Cecile’s favor, executed by you, and were they not drawn by Del Hosté, and witnessed by two Italians V’
To this the defendant answers “ Nothat she borrowed from del Hosté one hundred dollars; that when he was about starting for New-Orleans, he asked her for the hundred dollars, and she told him she had not the money, and gave him a note for it. Del Hosté told her he would make her an obligation for it, which she signed. Del Hosté then told her it was an obligation for the hundred dollars.
The eighth interrogatory is in these words: “ Since Cecile passed the act to you for the sale of his slaves, have you seen tlie counter letter you gave Cecile?”
Ninth: “ Do you know where they are ?”
Where fraud is the charge, it is rarely to be made out by direct and positive testimony; it being a principal object to those who concocted it to avoid proof. Circumstantial evi- . . . . , , . , , dence is commonly all that can be obtained, and every circumstance becomes material to ferrit it out. The very facj; 0f a disinclination to answer any interrogatory is suspicious, for if the transaction be fair, there is nothing to conceal. True, the party has the right to object to improper questions,
So, where interrogatories are propounded which may appear immaterial, yet. when fraud is alleged, the court is not authorized to dispense with having them answer* ed when they are not clearly improper.and we cannot deprive him of it, but they should be clearly SUch-.
That the paper she admits she did sign may, in her mind, have some connection with the matter in dispute, is evident; or why,: after denying that she made a will and lease, qualify that denial by the history of a paper “ which Del Hosté told her was an obligation for money due to him ?”
And why object to answer whether she had seen the counter letter since the sale, or whether she knew where it was % if the answers to the fourth interrogatory were absolutely true, viz., that she had executed no such paper; for, if so, it would have been impossible that she should have seen that which never existed, or know where it was. We think the justice of the case requires it to be remanded.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and avoided, and the case remanded for a new trial; that the defendant be required to answer the interrogatories; and that the appellee pay the costs of the appeal.