Bullard, J.,

delivered the opinion of the court.

The appellant relies for a reversal of the judgment rendered against him, on the grounds, 1st. That the court erroneously dispensed the defendant from answering an interrogatory, annexed to the petition, by which the plaintiff sought to prove that the defendant had agreed to pay an interest at ten per *523cent, on certain advances made by him, as commission merchant, which interest formed an item in the account annexed to the petition ; and, 2d. That, although the defendant had neglected to answer certain interrogatories annexed to a supplemental petition, no effect was given to such neglect or refusal to answer, but that the facts, which, under those circumstances, should have been taken as confessed, were entirely overlooked by the jury in rendering their verdict.

In an action oil the balance of account due, the plaintiff has a right to interrogate the defendant, touching the agreement oi the latter to pay conventional interest. The writing is not of the essence of an agreement to pay interest at ten per cent., hut that the legislature only intended to . exclude testimonial proof of such agreement. Where the defendant neglects to answer interrogatories ancexed to the perequired to be ^b^taken^'s confessed. >

We are of opinion that the court erred in striking out the interrogatory touching the defendant’s agreement to pay conventional interest. It has been settled in this court, that writing is not of the essence of an agreement to pay interest at ten per cent., but that the legislature only intended to exclude testimonial proof of such agreements. 6 Martin, 278.

It is also clear, that if the defendant neglected to answer the interrogatories annexed to the supplemental petition, the facts required to be disclosed, ought to be taken pro confessis. But as the case cannot be examined on the merits, we express no opinion as to the correctness of the verdict..

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed, the verdict set aside, and the case remanded for a new trial,, with directions to the judge not to dispense w'ith the answer of the defendant to the interrogatory touching conventional interest, and that the appellee pay the costs of this appeal.