Buschman v. Morling

Stewabt, J., delivered the opinion of the Court. We are unable to perceive in what way the appellant’s legal rights were affected, in the smallest degree, by the refusal of the Court below, in the first exception, to ask the witness, then in Court, if he had brought with him the papers ³⁹⁰ he was required to produce, under the subpcma duces tecum. Beyond all question, the Court was not obliged to grant this extraordinary request of the appellant’s attorney; but according to its discretion, had the right to refuse it. Such refusal afforded no ground whatever for exception.

The second, third, fourth and fifth exceptions may be considered together. Whilst leading questions, suggesting to a witness, the answer desired are not allowable; in order to facilitate the examination of a witness, questions which are merely introductory, and direct the attention of the witness to the particular subject of enquiry, are not objectionable. Under what circumstances such questions may be asked is a matter very much under the control of the Court, in the exercise of a sound discretion. Moody vs. Rowde, 17 Pick., 498 ; 1 Greenl. on Ev., secs. 434, 435.

We do not perceive that the questions propounded to the witness in this case were exceptionable and obnoxious to the spirit of the general rule forbidding leading questions. The testimony when offered might have turned out to be inadmissible, and for that reason ruled out; Jout its relevancy cannot always be perceived at the commencement, and it is usual to admit it, on the assurance of counsel, that it will be shown to be material by the further examination. Davis vs. Calvert, 5 G. & J., 304 . This indulgence is allowed to the counsel in furtherance of the ends of justice, and upon his responsibility, as an officer of the Court; because, in that stage of the proceeding, the Court has no other means