Where, in sum. pro. the defendant is served with interrogatories, and answers upon oath before the clerk, the plaintiff may, nevertheless, decline to offer the answer, and rely upon other evidence to establish his claim.

This was an action by summary process. The plaintiff had served the defendant with interrogatories, which *366the defendant had answered in writing under oath, and the answer had been regularly filed with the clerk. The plaintiff proposed to prove his case by other evidence, and offered a witness whose testimony he alleged he had discovered subsequent to the interrogatories being served on the defendant, and insisted he had a right to decline the use of the defendant’s examination, particularly as the plaintiff, (it was alleged) was entirely ignorant of what the answer of the defendant contained. On the part of the defendant it,was contended that the plaintiff having served the defendant with interrogatories, which the defendant had answered under oath, and which had been regularly filed with the clerk, it was not competent for the plaintiff afterwards to offer other independent testimony to sustain his demand, but that the case must be decided upon the answer of the defendant. The court held that the plaintiff was not at liberty after having examined the defendant upon oath, and after his answer to the interrogatories was filed with the clerk, to offer other independent evidence to prove his case. The testimony offered was, therefore, ruled inadmissible, and the plaintiff submitted to a non-suit, with leave to move to set the same aside, on the ground that the testimony should have been received by the court.