and it did not appear that any witness or other evidenc was absent. After the motion to continue the cause had been overruled, the counsel for the defendants moved the court to reconsider the motion, and also to remove the cause to the Circuit court, upon the ground that it had been pending in the County court more than twelve months. But the court refused to reconsider the motion to continue, or to remove the cause, and required the defendants to go to trial. And to the opinion of the court overruling the motion to continue the cause, and refusing to remove the cause, the defendants excepted. Some time before the term of the court at which the cause was tried, the defendants filed the following interrogatories to the plaintiff: 1. "From whom did you get the note in suit?" 2." If from the defendant, John Crawford, what did you pay him for it?" And to these interrogatories the plaintiff answered to the first: “I got the note in suit from John Crawford, who, so far as I had any knowledge, was the owner of it. As to the second question propounded, I respectfully decline to answer." After the motion to continue the cause had been overruled, and before the jury were sworn, the counsel for the defendants moved the court to strike from the answer of the plaintiff to the first interrogatory the words, "who, so far as I had any knowledge, was the owner of it," on the ground that they were not called for by or responsive to the interrogatory; and also moved the court to compel the plaintiff to respond to the second interrogatory. The counsel, in submitting this last motion, avowed their purpose to be to ascertain what the plaintiff had paid Crawford for the note, in order to fix the measure of his recovery against Crawford, and not to force the plaintiff to discover usury in the transaction. This motion was opposed by the coun 1860. July Term. Hogshead & als. V. Baylor. 1860. July Term. Hogshead & als V. Baylor. sel for the plaintiff, and was overruled by the court. And the defendants again excepted. The defendants further offered in evidence the deposition of Robert A. Hogsett, the maker of the note sued on; and to show that he was not interested, they produced the record of his confession of judgment in the office, and the final judgment thereon, and also a release to him by all the defendants except Crawford; and they produced a paper executed by the plaintiff, in which he says: "In the case of Baylor v. Rob. A. Hogsett and others, I have propounded interrogatories to the defendant, John Crawford, with a view of disproving the evidence of Robert A. Hogsett, tending to show that I procured the note from said Robert A. Hogsett at a greater rate of interest than six per cent. My object is not to fix a liability on John Crawford alone; and if I cannot obtain judgment against him and his preceding endorsers, I will not take judgment against him alone; he being willing to waive all objections to answering said interrogatories on this condition." To the introduction of the deposition as evidence, the plaintiff, by counsel, objected, on the ground that the witness was interested in the event of the suit; and the court sustained the objection. And the defendants again excepted. There was a verdict and judgment in favor of the plaintiff for the debt, interest, damages and costs; and thereupon the defendants applied to the judge of the Circuit court of Augusta county for a supersedeas, which was awarded; but, upon the hearing of the case, the court affirmed the judgment. And then the defen dants obtained a supersedeas from this court. Fultz, for the appellants. Hugh W. Sheffey and Baldwin, for the appellee. ALLEN, P. This case presents the same question as to 1860. July Term. & als. the competency of the maker to be examined as a witness which was raised in the case of Mills v. The Central Savings Bank. The circumstances being alike in Hogshead every particular, as to this matter, the cases were argued together. For the reasons assigned in the other case, I think the deposition of the witness was properly excluded. In this case, however, there are other questions presented which must be considered. The first exception taken by the defendants in the court below was to the refusal of the County court to continue the cause when regularly called,in consequence of the surprise of one of the counsel of said defendants, and the personal inconvenience to which he would be subjected if the trial was then pressed. The original counsel of the defendants was in court, and alleged no want of preparation. It was not alleged that any witness or other evidence was absent. And the want of preparation as to one of the counsel was merely that he had not examined the papers or considered the questions of law involved. The cause assigned furnished no legal grounds for a continuance. It was a question between the counsel and the clients, and addressed itself to the courtesy of the bar, but did not authorize the court to continue against the consent of the other party. After the motion to continue was overruled, a motion was made to remove the cause to the Circuit court, because it had been pending in the County court more than twelve months. The court properly refused to remove the cause at that time, as has been decided in the case of Spengler v. Davy, 15 Gratt. 381. From the second bill of exceptions it appeared that two interrogatories had been propounded to the plaintiff, in pursuance of the Code, p. 667, ch. 176, § 38. The first interrogatory was in these words: "From V. Baylor. 1860. July Term. & als. V. Baylor. whom did you get the note in suit?" To which the plaintiff had responded in the following words: “I got Hogshead the note in suit from the defendant, John Crawford, who, so far as I had any knowledge, was the owner of it." The defendants' counsel moved to strike from the answer the last clause, as not responsive. I think there was no error in overruling this motion. The object of the interrogatory would seem to have been to ascertain, not so much from what person the holder obtained the note, for that appeared by the endorsements and was alleged in the declaration, which averred the endorsement by John Crawford, the last endorser to the plaintiff, but to ascertain in what character he endorsed, whether as a mere accommodation endorser, or agent for the maker or some previous endorser, or as owner for value. In this view the clause was directly responsive to the substantial purport of the interrogatory. If that was not the object of the interrogatory, it does not appear how. the clause objected to was material, and, if immaterial, it does not appear how it could have injured the defendants. The second interrogatory required the plaintiff to say, if he got the note from Crawford, what did he pay him for it. Although the record does not show that issue was made up upon the plea of usury after the cause was remanded to the County court, yet it appears from the bills of exception, and has been conceded in argument here, that the case was tried on both pleas. And as the defendants below got the benefit of the defence, the decisions of the court must be construed with reference to these joint pleas, in which all the defendants below united, and upon which the cause was tried. The plaintiff having refused to answer the second interrogatory propounded, the defendants moved the court to compel him to answer it, avowing, in submitting their 1860. July Term. & als. V. Baylor. motion, their purpose to be to ascertain what the plaintiff had paid to Crawford for the note, in order to fix the measure of his recovery against said Crawford, and not Hogshead to force the plaintiff to discover usury in the transaction. The motion to compel him to answer was overruled, and the defendants excepted. In one aspect of this interrogatory a question might arise as to the measure of recovery-whether the amount of the face of the note or the sum actually paid by the holder. The cases in this State of Whitworth v. Adams, 5 Rand. 333; McNeil & Turner v. Baird, 6 Munf. 316; Wilson v. Lazier, 11 Gratt. 477, would seem to establish that the bona fide holder, the question of usury being out of the case, is entitled to recover from all the parties the amount of the face of the note. So that if the case stood alone upon the plea of nil debet, the answer to the interrogatory would have been immaterial, and the defendants were not injured by the refusal to compel the plaintiff to respond to the interrogatory. The interrogatory was objectionable on another ground; the discovery sought was of a matter personal to the last endorser. The previous endorsers, there being no question of usury, would be liable for the amount of the face of the note. The action and plea were joint, and a joint judgment must have followed. If the last endorser had desired to raise the question, and it could have availed him, there should have been a separate plea. But there is still another and decisive objection to the motion, an objection made at the time, as appears from the bill of exceptions that is, that the said defendants should have withdrawn their defence of usury before the plaintiff should have been required to answer the interrogatory. The Code, ch. 176, § 38, p. 667, authorizes the court to require answers to interrogatories such as the person to whom they are propounded would be bound to answer upon a bill of discovery. The bill of dis |