Halbert for his right to land does not suggest any particular answer as to questions concerning the relationship of the witness to Halbert or the fact of his being dead or alive. These statements were unnecessary, but we are of opinion that a statement in an interrogatory which merely calls the attention of the witness to the subject-matter of the inquiry is no ground for suppressing the answer. Long v. Steiger, 8 Texas 460. as or We are further of the opinion that the tenth interrogatory is not leading. It does not properly admit of an answer "Yes" or "No," and we are not aware of any decision which holds that a question is leading merely because it is put in the form "did or did not." Whether a question in that or a similar form be leading or not depends upon the determination of the inquiry whether it suggests any particular answer; and we think questions in that form which have been held leading are not such as inquire into a single fact, but such as enable the witness to state in two words, such "he did" "he did not," a series of group of facts. Such is the case of Tinsley v. Carey, 26 Texas 350. The question there evidently suggested to the witness that it was desired to prove that about January, 1857, Tinsley got money from the sheriff of Bastrop County, and that he was first to satisfy a judgment in favor of a certain person and then to apply the balance upon other debts. That these were the facts desired to be proved is indicated by the questions held leading in that case. But as to the question now under consideration, we think it would puzzle the astutest lawyer, who is uninformed as to the issues in the case, to determine from the question alone whether the examiner desired to prove that the witness had or had not transferred the certificate. In like manner the other interrogatories objected to we think legal; except the thirteenth, which with some hesitation we hold to be leading.1 1 [The Docket, October, 1911. "Editor of the Docket: "Enclosed I send you a question which was asked on direct examination in a chancery cause recently in which I was one of the attorneys. . . . "Yours truly, ... T. "'Q. Is it or is is not a fact that said B. told you to let him have the other letters about it, but he thought there would be no difficulty in the matter with Mr. R., and he would write to him that he was of the opinion that Mr. T. was laboring under some misapprehension; that he, the said B., had heard Mr. E. speak of this matter some time in the summer, and he stated to him, the said B., the fact that you had traded for the place, and said that it was so because said R. had told him so; that he carried him from your house to K.; and that you had told him the same thing; and that the said B. said he never knew said R., but had heard of him, and, from what he had heard, he thought he was a pretty straight sort of fellow; and that he would write to said R. about it; Did or did not this occur?' "A.-I think it did.""] 46 7 220 BOOK I: RULES OF ADMISSIBILITY No. 151 151. THOMAS HARDY'S TRIAL. (1794. Howell's State Trials, XXIV, 754). [Treason. The witness had testified to the doings at a meeting of the defendant's society. The witness was a member of the Society at the time, and was not known by his colleagues to be attending the meetings to get evidence for the Crown. He is now on cross-examination.] What was the first time that you were at any of those meetings? On the 20th of January. ... How came you to go then?—I was sent by a gentleman. It was a person high in office under his majesty; but permit me to add, I was not desired by that gentleman to conceal his name. Mr. Gibbs. — Then trusting in you, he sent you to the Globe tavern on the 20th of January, 1794?-Certainly. Then you never were at any of those meetings in the character of a spy? - As you call it so, I will take it so. Mr. Gibbs. — If you were not there as a spy, take any title you choose for yourself, and I will give you that. Mr. Gibbs. I did not desire you to take any title in the sense that gentleman is using the term; you object to the term spy, as I called you, and I bid you take any other name. Lord Chief Justice EYRE. There should be no name given to a witness on his examination: he states what he went for, and in making observations on the evidence, you may give it any appellation you please. You recollect I made the observation before, when Mr. Erskine did the same thing. Mr. Gibbs. — I really did not feel that I was going at all out of the way in the cross-examination of a witness, in calling him by a name which suits his character, though he does not like it. Lord Chief Justice EYRE. - Go on. Mr. Gibbs. You went then (not to call you a spy) to these meetings in the character of a person who had no other reason for going there, than that of picking up what information you could, and carrying it again to those employers, in whose confidence you were? - Certainly. Mr. Gibbs. You have been giving an account of some conversation that passed there; cannot you recollect who the persons were that had that conversation? —No, I do not know; there was a universal conversation. Mr. Gibbs. You going there for the purpose of collecting evidence against individuals, and coming now to give evidence against an individual, you thought it not material to observe who the people were who then used this language you, a gentleman used to practise at the Old Bailey, and meaning to give evidence afterwards against those persons, did not think it material to learn by whom these conversations were held? Lord Chief Justice EYRE. - Mr. Gibbs, I am sorry to interrupt you, but your questions ought not to be accompanied with those sort of comments; they are the proper subjects of observation when the defence is made. The business of a cross-examination is to ask to all sorts of acts, to probe a witness as closely as you can; but it is not the object of a cross-examination, to introduce that kind of periphrasis as you have just done. www Mr. Gibbs. Send to Mr. Erskine, he is in the parlor. (Mr. Erskine immediately came into court.) Mr. Erskine. - Will your lordship give me leave to say, it is the universal practice of the Court of King's bench, the first criminal court in this country, in which I have had the honor to practise for seventeen years - we are certainly permitted to go as far as this. I agree with your lordship in what you just now said (and it will be of no consequence whether I did or no, because your lordship must give the rule). But what I take my learned friend to have said to the witness, is this: "You, sir," not meaning it as an insult to the witness, but "you, sir, as a practiser at the Old Bailey, must know the necessity, if you go to any place to get evidence, of having proper materials for that evidence; how do you account for not having done that?" In a cross-examination, counsel are not called upon to be so exact as in an original examination — you are permitted to lead a witness. . . Mr. Justice BULLER. — Undoubtedly the practice has increased much within my memory: what Mr. Erskine alludes to now has been universally the practice; that when you are upon a cross-examination, you are permitted to lead a witness more than you can on an original examination. But be so good as to recollect the mode in which the Lord Chief Justice put it yesterday, and I do not think in Guildhall, or any where else, you ever departed from that. You may lead a witness upon a cross-examination to bring him directly to the point as to the answer; but not to go the length as was attempted yesterday, of putting the very words into a witness's mouth, which he was to echo back again. Mr. Erskine. - Having done that yesterday, I immediately bowed to the admonition I received from my Lord Chief Justice. Lord Chief Justice EYRE. . . . With regard to the point, I think it is so clear that the questions that are put are not to be loaded with all the observations that arise upon all the previous parts of the case. They tend so to distract the attention of every body; they load us in point of time so much; and that that is not the time for observation upon the character and situation of a witness is so apparent, that as a rule of evidence it ought never to be departed from. But it is certainly true that it does slide into examinations, and that it is very often not taken notice of, and it saves more time frequently to let it pass than to take notice of it. But there is a rule to which all those sort of things, if once an appeal is made to the Court, ought to be brought, and my judgment is, that after you have got the particular facts upon which that sort of observation is founded, the examination ought to proceed to the other facts upon the case, and the observations upon those former facts ought to make part of the defence. . . Mr. Gibbs. — I think you told me that you were a gentleman who practised at the Old Bailey; do you now practise here, or have you left off that practice? -I have not left it off. --- You now practise at the Old Bailey?—I have not for some time. Your reason for not having practised is, that no business has been brought to you, I presume?-Certainly, you are right there. Did you or not think it necessary, at this meeting, to attend to the particular persons from whom the conversation that you are now stating, proceeded? - At that time I was a total stranger almost to every one in the room. You did not endeavor to distinguish what was said by one man from what was said by another?-I did not in conversation. 152. STATUTES. United States Revised Statutes. (1878. §864). Every person deposing, as provided in the preceding section, shall be cautioned and sworn to testify the whole truth, and carefully examined. His testimony shall be reduced to writing by the magistrate taking the deposition, or by himself in the magistrate's presence, and by no other person, and shall, after it has been reduced to writing, be subscribed by the deponent. gout writing deposition we 491 w.803 153. ALLEN v. RAND SUPREME COURT OF ERRORS OF CONNECTICUT. 1824: 5 Conn. 321 THIS was an action of trespass, tried at Middletown, February Term, 1823, before HOSMER, Ch. J. To prove a material fact, the defendants offered in evidence the deposition of Mary Trowbridge; to the admission of which the plaintiffs objected, on the ground, that it was written by the agent of the defendants, or of one of them. The circumstances were these. On Monday, previous to the taking of the deposition, the parties met at the house where Mrs. Trowbridge resided, with the magistrate who ultimately took the deposition. He attempted then to take it; but after writing a few lines, Mrs. Trowbridge became faint and exhausted; and the business was adjourned to the next evening. Afterwards, in the absence of the plaintiffs and their counsel, and of the magistrate, Rand, one of the defendants, requested Cornelia Hall, who was living in the house with Mrs. Trowbridge, to write her deposition, from time to time, as she was able to give it. With this request Miss Hall complied; and, at the time adjourned to, the plaintiff not having attended, the paper thus written by her, was presented to the magistrate, and being read to Mrs. Trowbridge, was signed by her, and sworn to. The Chief Justice held, that the deposition was inadmissible; and rejected it. The plaintiffs having obtained a verdict, the defendants moved for a new trial, on the ground of this decision. Sherman, in support of the motion, contended, that the deposition of Mrs. Trowbridge was legally taken. From her peculiar situation, it was necessary that some person residing in the house with her, who could watch her returns of strength, should write down her testimony for her. An amanuensis was indispensable. Rand requested Miss Hall to act in this capacity. He gave her no instructions. She did not know what use was to be made of the writing. There was not only nothing fraudulent or unfair in the transaction, but there was nothing in the situation of Miss Hall calculated to produce any bias on her mind. Aside from the single circumstance, that the request came from Rand, she acted in as unexceptionable a manner as she could. Then, does this circumstance, of itself, destroy the deposition? It was a lawful act, not prohibited by the statute, and clearly not malum in se. If a request from the party to write a deposition vitiates it; then such a request to the deponent, or to the magistrate, would have that effect. The material inquiry is, not at whose request the writing was done, but in what capacity the writer acted; whether it was done by an agent of the party, by one presumed to have an interest or bias in his favor. This, evidently, was 'not Miss Hall's situation. If she was the agent of Rand, her act was his act; but did Rand write this deposition? What she did was in aid of her inmate, the deponent, or of the magistrate engaged to take the deposition. It lightened their labor. She was their substitute; but not Rand's. Staples and Hotchkiss, contra, after remarking upon the salutary nature of the provisions of law intended to guard against fraud in the taking of depositions, and the importance of adhering to the general rule prescribed, without inquiring whether there was any unfairness in the particular case, contended, that Miss Hall was in fact the agent of Rand, and acted as such, in writing the deposition of Mrs. Trowbridge. Whether she lightened Mrs. Trowbridge's labor, or whether she was, in any sense, the amanuensis of Mrs. Trowbridge, is immaterial. Sufficient it is, that Rand employed her to do this service; and in doing it, she acted under his authority. If A. employs B. to do a particular act, and B. does it; is not B., in doing that act, the agent of A.? The writing of depositions by amanuensis employed by the party is a door leading to all the mischiefs the Legislature intended to guard against. That door this Court will not open. HOSMER, Ch. J. The only question raised in this case, is, whether the deposition of Mrs. Trowbridge was legally rejected. By statute it. is enacted, (p. 47) that "the party, his attorney, or any person interested, shall not write, draw up, or dictate any deposition"; and that every such deposition shall be rejected by this Court. Whether the deposition of Mrs. Trowbridge was taken under the above law, or while the preceding statute was in force, does not appear from the motion; but this is perfectly immaterial, as the law now existing is precisely similar to the former, not in words, but in the construction which the Courts had put upon it. The law will not trust an agent to draw up a deposition for his principal; as by the insertion of a word, the meaning of which is not correctly understood, or by the omission of a fact that ought to be inserted, the testimony thus garbled and discolored, will be false and deceptive. Nor is there any possible argument in favor of such a proceeding. The deponent may write the deposition; or procure it to be written, by a disinterested person; or the parties may agree on a fit person for this purpose. The statute, even when strictly construed, is sufficiently lax, when ex parte depositions are taken, at least not unfrequently, to admit of the poisoning of justice in the very fountain; for if the evidence is untrue or partial, the result can never be conformable to right. The deposition in question was written by Cornelia Hall, in the absence of the plaintiffs, their counsel, and the magistrate, on the procurement of Mr. Rand, one of the defendants. He requested and pro |