60 Ala. 572 | Ala. | 1877
To determine when a question is leading, and, if leading, when it will be allowed in practice, is one of the most difficult questions the practitioner encounters. So much depends on the nature of the fact sought to be proved, and on the temper and bias of the witness, that no general rule can be laid down, which will suit the requirements of every case. All the authorities agree, that direct and leading questions may be propounded to any witness, to lead his mind and attention up to any subject, upon wliich he is called to testify; and there are many other questions, which are of such character, that the inquiry must be framed in leading form, else the counsel and witness can not be made to understand each other. Proof of hand-writing, of character, of personal identity, and of many other analogous subjects, are of this class. And when a witness is called to testify against what appears to be his interest or bias, or manifests reluctance, hesitation, evasion, or art, in giving his testimony, the court will permit leading questions to be propounded by the party calling him, so as to elicit the full truth, if possible.
Brit, when the witness' is interested, or prima fade biased in favor of the party calling him, leading questions should not generally be allowed, farther than to lead the witness up to the subject about which he is to testify. A question which suggests the answer sought, is, as a rule, leading. “ Questions are also objectionable, as leading, which, embodying a material fact, admit of an answer by a simple negative or affirmative.” — 1 Greenl. Ev. § 434. In Page v. Parker, 40 N. H. 48, 63, the court said : “ The question proposed by the plaintiff to Arioch Wentworth in his deposition was manifestly leading. It suggested a material fact, in such a way as to indicate very decisively to the witness that he was expected to verify its truth by his answer, and might have been answered by a simple affirmative or negative.” In Turney v. The State, 8 Sm. & Mar. 104, 112, the same doctrine is asserted. In Lessee of Snyder v. Snyder, 6 Bin. 483, 490, the court said : “ Instead of asking the witness, whether he had heard John Bower say anything, and what, on a certain subject, the words were put into his mouth, viz., ‘did he assign to you, as a reason why he would not bid more for the isle of Gue, that he could buy Willing’s land for 31. an acre, and that on yearly installments, &c ?’ I am of opinion, therefore, that the plaintiffs in error have supported their exception to Miller’s deposition.” The deposition was ruled out. — See, also, Sayre v. Durwood, 35 Ala. 247; Donnell v. Jones, 13 Ala. 490; James v. Tait, 8 Porter, 476. And a question is, to all intents and purposes, leading, if it states a - material fact, and asks the witness whether it is true or false. This, however, must be taken with the qualifications stated above.
Under these rules, many of the questions propounded to the witnesses, Thomas Strong, Willie Strong, and A. H. Ellett, were leading; and they, and the answers to them, should have been suppressed. We append to this opinion a statement of the particular interrogatories which fall under this ruling.
The entire deposition of W. H. Donegan, except the answer to the first interrogatory, should have been suppressed. The second interrogatory was leading, under the rule above
We think the witness, David P. Lewis, was not competent to testify to the matters shown in his deposition. He was more than a mere draughtsman, selected by the common choice of the two contracting parties, to reduce their previous agreement to writing.—See Parish v. Gates, 29 Ala. 254 The record tends to show, that he was the selected attorney to devise and consummate a plan by which Tbornas Strong should secure to his wife payment, in land, of a debt due from the former to the latter. That this must have been his relation to the transaction, is shown by the fact that, after drawing the executory agreement looking to that result, he, as solicitor for Mrs. Strong, filed a bill to have the executory contract ratified and executed, and prosecuted it in her interest to a successful termination. This was attorneyship, and the information he received during, and in virtue of the retainer, was privileged. His deposition should have been suppressed. — 1 Greenl. Ev. § 237, and sections following. ■
There is evidence of acts and admissions by Thomas Strong and Mr. Ellett, done and made in the absence of Mrs. Strong. These are not evidence against her.
The result of the foregoing rulings is to make it proper that much of the testimony, on which the case was tried below, should be retaken. We should probably do injustice to the parties, if we were to offer any comments on the present mutilated state of the evidence; and we abstain from doing so.
The parties are about in equal fault for the condition in which this record comes before us ; and we therefore divide the costs equally between the adult parties; half against appellants, and half against appellees.
Reversed and remanded.
Interrogatories propounded to Willie E. Strong that are suppressed: Nos. 5, 6, 7, 12, 14, 18, 19, 32, 33, 34, 35, and all answers thereto.
Suppressed interrogatories and answers in deposition of Thos, B. Strong : Nos. 8, 9, 11, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 30, 31, 32, 33.
Suppressed interrogatories and answers in deposition of Alfred H. Ellett: Nos. 4, 6, 7, 8, 17, 18, 19, 20, 21, 28, 31, 32,