
    John Hill, v. David Denny.
    If a defendant, in “summary process,” choose to embrace the alternative allowed by the rule of Court, and answer ore tenas to the interrogatories propounded by the plaintiff, this gives no more right to defendant's counsel to cross-examine defendant, than if he had submitted answers in writing, attested as usual, or had been examined out of the State by commission.
    Where a defendant Is called on, in the summary process jurisdiction, to give testimony, he is not regarded as a witness generally; this mode of proof having been authorized only in cases where ihe evidence is inaccessible according to the common law rules.
    Tried before Mr. Justice Butler, at Edgefield, Fall Term, 1846.
    This was a special action of assumpsit, in sum. pro., to recover back money which the plaintiff had paid the defendant, under the following circumstances:
    
      On the 4th November, 1844, the defendant applied to the plaintiff, as Ordinary, to be qualified as executor of Nancy Wells’ will, and for letters, warrant of appraisement, and order of sale. It was on sale day, when there were several in the office. The fees for the services rendered by the Ordinary, amounted to $0 50. In the receipt given to the defendant, the plaintiff’acknowledges to have received oí him, as executor, for the services enumerated, $60 50. The defendant said nothing to the plaintiff on the subject of the receipt, after the occasion upon which it was giveu, until December, 1845, when he made his first return; when he showed this receipt, and alleged that he had paid the amount called for. The plaintiff was supprised at the amount; but upon the allegation and solemn averment of the defendant that he had, in fact, paid $60 50 cents, instead of $6 50, the plaintiff paid the difference, $54, the amount for which the action was brought. Afterwards, the plaintiff became satisfied, as he contended, that the payment had been made under false and fraudulent misrepresentations. As the case was one of vital interest to one of the parties, I will give the details of the evidence.
    The plaintiff served the defendant with written interrogatories, and required answers to them, and no others.
    When the defendant was put on the stand. Mr. Wardlaw— You are expected to give direct answers to these questions, and no more. He answered, the plaintiff had given him the receipt, and had rendered the services specified. On 1st December, he showed the receipt to plaintiff, and said there was surely a mistake in the charge. Plaintiff replied, “are you sure you paid me $60 501” Defendant said yes; I am confident of that fact; and perhaps said, I am ready to swear to it. At another time> he is certain he said, I am ready to swear to it. Upon his demand, made under these circumstances, the plaintiff refunded $54; and the defendant, thereupon, on request of plaintiff, delivered up the receipt. The plaintiff did not express his purpose in making payment and demanding receipt. The money wTas refunded on sale day. On this occasion, several were in the office. On the occasion when the money was paid, Elijah Watson was in the office before the money was paid. He said when the receipt was handed to him, after the services were rendered, he remarked there must be some mistake. The plaintiff replied, “I reckon not,”'—and thereupon, without more being said, the defendant said in his evidence, “the money was handed over to the plaintiff.”
    
    He said that he had acted as administrator of Wm. Denny’s estate, and had transactions in the office connected with it.
    David Rush was sworn, and said that he was in the Ordinary’s office, on the 4th November, when the receipt was given. Having business, he had been there all day, and expressed his anxiety to have his business attended to. The Ordinary remarked, “I wili attend to you as soon as I am through with Col. Denny.” When the receipt was handed, Denny paid by handing a bill, one bill, and the plaintiff handed back a bill and fifty cents change.
    He did not hear Denny say any thing, by way of objection to the charge. This witness did not recollect of any one being present.
    Yirgil White—said he was in the office, assisting Ordinary, when Denny made his first return, which was on sale day of December, 1845. When the witness had made out the return, and presented the change, $1 25, Denny remarked, “I want to speak to the Ordinary.” Heard him speak to the Ordinary, who said in a tone of surprise, “Why, Col. Denny, $60,” and he heard no more.
    Joseph Abney, Esq.—said he was present at an interview between the parties, the latter part of last year. Hill made a demand of repayment of the money. Upon Denny’s refusing, he said, “I’ll see that you swear to it in Court.”
    Allen Little was sworn, and asked if he did not have a conversation with Denny, on the subject of the receipt, shortly after it was given. He commenced his answer by saying, that in coming from some sale, Denny conversed with him about it. Here an objection was interposed, as to the competency of the defendant’s declarations, out of Court, as to the matter in controversy. The objection being sustained, the witness said nothing more.
    Manchester Padget, on the part of defendant—tvas present •when plaintiff paid the money to Denny. Plaintiff went out —got the money, paid it, and took a receipt—saying, this will teach me how it is to be hauled about on sale day; I will keep it as a caution. Col. John Huit, James Shepherd, and Dennis McCarty—said they had always regarded the defendant as a man of good character.
    As to the grounds of appeal, the presiding Judge remarks, that he was not aware that the defendant’s counsel on the trial, claimed the right to cross-examine the defendant, when he was under examination. He was not conscious, at any rate, that the question was adjudicated. The question was certainly not discussed. But he presumes, if it had been, he should have conformed to the common practice of the Court.
    The case went to the jury—{one being claimed) as a question of fact for their determination. No question of law, as to the plaintiff’s right to recover, was made by defendant’s counsel. In noticing the nature of the action, he remarked, that if the plaintiff had paid back the money to Denny, either in ignorance of law, or as a gift to get rid of difficulty, under the maxim, “ Volenti non fit injuria,” he ought not to maintain this action; but that if he had paid it under false statements or fraudulent misrepresentations, he ought to have a verdict against him for the amount which had been improperly paid to him.
    The jury returned a verdict for the plaintiff.
    The defendant appealed from the verdict of the jury, and moved for a new trial in the Court of Appeals, on the following grounds:
    1st. That his Honor erred, in denying to the defendant’s counsel the right to cross-examine the defendant, who was examined by the plaintiff.
    2d. Because his Honor rejected the evidence of Allen Little, a witness offered to prove that the defendant, shortly after the receipt for $60 50 cents had been gffen him by plaintiff, complained to the witness that the charge was too high, especially as such evidence was offered in reply to questions propounded to the defendant, inquiring whether he had complained to plaintiff, or had consulted counsel, &c.
    
      3d. Because the sum of $54 was paid to the defendant, by the plaintiff, under no ignorance of fact or law, and without duress, extortion or false allegation, and merely to correct a mistake.
    4th. Because the plaintiff, under the circumstances, had no right to the money recovered.
    Griffin, for the motion.
    Wardlaw and Carrot.l, contra.
    
   Withers J.

delivered the opinion of the Court.

There is nothing in the third ground of appeal, for the matter embraced in it was submitted to the jury under a proposition of law unexceptionable in form or substance. The main question in the case grows out of the first ground of appeal, which complains, “that his Honor erred in denying to the defendant’s counsel the right to cross-examine the defendant, who was examined by the plaintiff.” In pursuance of the thirty-fourth rule of Court, questions in writing were propounded on the part of plaintiff to the defendant, who thought proper to embrace the alternative permitted by the rule, of answering ore tenus.

Whether we refer to the inveterate and general practice, or to the proper interpretation of the rule cited, the attorney for defendant was not entitled to cross-examine him. It is not perceived how the defendant could occupy a position,by reason of delivering his testimony ore tenus, more favorable to the claim now made in his behalf, than he would have done in case he had submitted answers in waiting attested before the clerk; or in the case of being absent from the State, the plaintiff had resorted to a commission for his deposition. In either of these latter cases, it cannot be pretended that the defendant’s counsel would have been authorized to propound cross-interrogatories. No provision is made or intended in the 34th rule of Court to secure to the defendant or party examined by commission the privilege of cross interrogatories. Indeed, when a party is called upon in the summary process jurisdiction to give testimony, he is not regarded as a witness generally, but the object is to extract from him a discovery upon such matters as are set down in writing, this mode of proof having been authorized only in cases where, to the party resorting to it, evidence is inaccessible according to common law rules. Nor does it appear that the appellant in this case will derive any benefit from any illustration tobe derived from the practice in equity in similar cases. Upon a bill for discovery, the answer of the respondent is understood to be recognized in that jurisdiction as evidence, only so far as it is responsive to the allegations and inquiries contained in the bill. It is not intended to restrict the answers of a party when examined, as in the present case, to such limits as would cut off a full explanation of his meaning, by qualification or otherwise, in the direct answers he may make to the interrogatories propounded. In other words, it is intended, that within the range prescribed by the questions, his answers shall be complete, and this as well for the benefit of his adversary as of himself. But within such range his responses must be confined, and the true and fair execution of the rule, so understood, will be secured by the supervision of the presiding Judge. These observations wall cover the second ground also. The inquiry in the seventh interrogatory, demanded whether the-defendant had ever mentioned to the plaintiff any thing about the mistake that he alleged, or had consulted counsel on the subject. This question had nothing to do with any thing he may have said to Allen Little.

The motion is refused.  