Note on Opening Door.

ant to testify as to conversations with plaintiff preceding the writing). De Varry v. Schuyler, 8 id., 221 (though executor testified that testator's signature to a note was not genuine, defendant cannot testify that he received the notes from deceased). Davis v. Gallagher, 9 id., 11 (where deceased's representative testifies as to a transaction between deceased and the opposite party the latter may also testify in relation thereto); s. p. Wilcox v. Corwin, 117 N. Y., 500; s. c. 23 Northeast. Rep., 165; Matter of Bedlow, 67 Hun, 408; s. c. 22 N. Y., Supp., 290 (the examination of the mother of beneficiary as to a transaction with deceased, she not being an interested party, does not entitle the adverse party to testify in relation thereto). McMurray v. Ennis, 14 N. Y., Supp. 635 (permitting a party to testify as to transactions with deceased does not prevent a subsequent objection to further testimony as to such transaction); Blankman v. McQueen, 13 id., 663 (on redirect examination, an interested witness may testify as to a transaction with deceased, if on cross-examination he was questioned on the subject by the administrator's counsel); Harringv. Winn, 14 id., 612 (the answering by executrix on cross-examination as to testator's conversation with plaintiff does not enable plaintiff to testify as to it); Brown v. Burgett, 15 id., 942 (in an action for the price of land deceased's assignee testified that plaintiff had told him that deceased had paid for the land by transferring to plaintiff a contract for the purchase of certain other lands; held, that this did not permit plaintiff to deny that he took such transfer in payment); Hard v. Ashley, 18 id., 413 (proof of transaction with deceased by a disinterested witness does not authorize an interested party to give his version). North Carolina: Hopkins v. Brown, 108 N. C., 298; 12 Southeast. Rep., 984 (to prove meretricious union and illegitimacy, heirs produced deceased's alleged widow and children to show that they had negro blood; held, that this did not make the woman a competent witness as to her marriage with deceased). Rhode Island: Bowen v. Bowen, R. I., 1892, 24 Atlantic Rep., 714 (where opposite party calls defendant to account, his account under oath may be received, though it relates to transaction with deceased).

Moody v. Rowell, 17 Pick., 490.

MOODY v. ROWELL.

Supreme Court of Massachusetts, 1835.

[Reported in 17 Pickering, 490.]

Leading questions may in the discretion of the court be put to a witness on cross-examination, although relating to matters not inquired of upon the direct examination.

Assumpsit on a promissory note.

The defense rested on the ground that the signatures of the defendant and of the payee were forged.

Henry H. Brown was called as a witness by the defendant and examined as to the handwriting of the payee. On crossexamination by plaintiff, as to defendant's handwriting, one of the questions was objected to as leading. The objection was sustained and the plaintiff not permitted to cross-examine the witness as to the defendant's signature, he not having been questioned on that subject by the defendant.

At the trial, a verdict was rendered for the defendant.

On exceptions to several rulings as to admission of evidence, the plaintiff moved for a new trial.

The Supreme Court declared the plaintiff entitled to a new

trial.

SHAW, C. J. [after considering other points]: The court have no doubt, that it is within the discretion of a judge at the trial, under particular circumstances, to permit a leading question to be put to one's own witness, as when he is manifestly reluctant and hostile to the interests of the party calling him, or where he has exhausted his memory without stating the particular required, where it is a proper name, or other fact, which cannot be significantly pointed to by a general interrogatory, or where the witness is a child of tender years, whose attention can be called to the matter required only by a pointed or leading

Moody v. Rowell, 17 Pick., 490.

question. So a So a judge may, in his discretion, prohibit certain leading questions from being put to an adversary's witness, where the witness shows a strong interest or bias in favor of the cross-examining party, and needs only an intimation, to say whatever is most favorable to that party. The witness may have purposely concealed such bias, in favor of one party, to induce the other to call him and make him his witness; or the party calling him may be compelled to do so, to prove some single fact necessary to his case. This discretionary power to vary the general rule, is to be exercised only so far as the purposes of justice plainly require it, and is to be regulated by the circumstances of each case.

But upon the question, whether, as a general rule, the crossexamining party is prohibited from putting a leading question, to a matter not inquired of by the party calling him, on his examination in chief, there is a diversity of opinion. It was held by Mr. Justice Washington, that such question could not be put. (Harrison v. Rowan, 3 Wash. C. C. R., 580.) This is a very respectable authority and entitled to great consideration. But in the case cited, the nature of the question, and the circumstances under which it was put, are not stated, no argument was had, and no authority cited. The same view seems to have been taken by the Supreme Court of Pennsylvania. (Ellmaker v. Buckley, 16 Serg. & Rawle, 77.) But we think the general practice has been otherwise both in England and in this state, and is so laid down by the compilers. (1 Starkie on Ev. (4th Am. Edit.), 131; 1 Phillips on Ev. (6th Edit.), 260.)

There is one authority directly in point, where the objection was taken, and it was decided by Lord Kenyon, at nisi prius that such leading question is admissible. (Dickinson . Shee, 4 Esp. Cas., 67.) So, in several recent cases, it has been held that where a witness is called to a particular fact, he is a witness to all purposes, and may be fully cross-examined to the whole case, and no distinction is suggested as to the mode of examination. (Morgan e. Brydges, 2 Stark. R., 314; Rex . Brooke, ibid., 472.)

On the whole, the court are of opinion, that the weight of authority is in favor of the right to put leading questions, under the circumstances stated, and that this is confirmed by practice

Cheeney v. Arnold, 18 Barb., 434.

and experience. It is most desirable that rules of general practice, of so much importance and of such frequent recurrence, should be as few, simple and practical as possible, and that distinctions should not be multiplied without good cause. It would be often difficult, in a long and complicated examination, to decide whether a question applies wholly to new matter, or to matter already examined to in chief. The general rule admitted on all hands is, that on a cross-examination, leading questions may be put, and the court are of opinion, that it would not be usefulto engraft upon it a distinction not in general necessary to attain the purposes of justice, in the investigation of the truth of facts, that it would be often difficult of application, and that all the practical good expected from it may be as effectually attained by the exercise of the discretionary power of the court, where the circumstances are such as to require its interposition. As this was laid down as the general rule of law, the court are of opinion, that upon this ground, the plaintiff, if he shall be so advised, is entitled to have a new trial.

CHEENEY v. ARNOLD.

Supreme Court of New York, 1854.

[Reported in 18 Barb., 434.]

The judge has a discretionary power to permit leading questions to be put to a witness on direct examination so far as justice plainly requires under the circumstances of the case.

So held where the draftsman of a will had in the course of years become so blind that he could not scrutinize the writing.

The plaintiffs, to maintain their action, proved title to the premises in question in Charles Harris at the time of his death; that he died in the year 1828, leaving Betsy Harris, his widow, and Phila Cheeney [plaintiff], his only child, him surviving; that the widow had since married a Mr. Pike, and that the defendant had lived on said premises nearly twenty years. After making this proof the plaintiffs rested.

The defendant, in order to establish the last will and testament of Charles Harris, deceased, introduced the testimony of

Cheeney v. Arnold, 18 Barb., 434.

Barnabas Brown, taken conditionally, after first proving that the witness was about ninety years of age, and so infirm as to be unable to attend the trial. It appeared by the testimony of the witness, that he had lived in the town of New Berlin for the period of about fifty years; that he was nearly blind; that he was acquainted with Charles Harris in his lifetime, and wrote his last will and testament for him, and saw him sign it and witnessed its execution, with Mr. De Long and Mr. Steere; that he wrote the will according to the directions of the testator, and read it over to him as he wrote it; that the witnesses subscribed their names in the presence of the testator and in presence of each other. It appeared that the witness De Long was dead. Questions put to the witness Brown were objected to by plaintiff, as leading, the answers nevertheless being admitted.

At Circuit, verdict was rendered for the defendant. Plaintiff appealed on several grounds, among them, the permitting of leading questions to be put to the witness Brown.

The General Term affirmed the judgment. CRIPPEN, P. J. [after stating the facts]: No error was committed by the defendant's counsel in the manner of putting questions to the witness Barnabas Brown, under the circumstances of the case. Length of years had so far obscured his vision as to render him unable to discover his own handwriting on the paper containing it. It was therefore entirely legal and proper to direct his attention to the will and to the fact that he had written it for Mr. Harris, and also to all the principal facts ordinarily occurring upon the transaction of such business. It was not pretended that the witness was merely imbecile, or that he was not fully competent to comprehend the force and effect of the questions put to him; he could not look at and discern the instrument; he could not, from an examination of it, know or ascertain the names of, or who were the attesting witnesses to its execution; nor could he discover the manner and form of execution of the testator. Under such circumstances it was not improper to allow questions in a leading form to be put to the witness, in the manner adopted in this case.