Buschman v. Morling , 1869 Md. LEXIS 42 ( 1869 )

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 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 of determining the matter. But where the Court can perceive that the testimony, under no circumstances is relevant, it should not be admitted. Haney vs. Marshall, 9 Md., 213.

With this explanation, we think the questions were allowable and the testimony admissible, subject to the right to have it excluded if finally ascertained to be irrelevant.

The objection was made to Barry’s testimony, in the second exception, because there was no count in the declai’ation on the award, about which the witness was interrogated. Similar objection was made to the testimony proposed, in the third exception; also in the fourth exception, after the witness had proceeded to give testimony, a like objection was taken to the answer to the question, when the witness had stated it had reference to an award, because the award had not been declared on; also in the fifth exception, where the witness had given testimony of what occurred when he presented, a paper to the appellee, and was being further interrogated as to what the appellee said, objection was made to any further answers if they related in any manner to the award.

(Decided 13th March, 1869.)

The Court, in all these exceptions, ruled against the admission of the testimony, as being inadmissible under the pleadings. The declaration in this case contains a count upon an “ account stated,” and it was competent to give in evidence, under such count, an award made between the parties, and an admission of the balance due. Keen vs. Batshore, 1 Espin. Rep., 193; Randall vs. Glenn, 3 Gill, 438; 1 Chitty, 359; 2 Greenleaf on Evidence, sec. 126.

The evidence proposed to be offered by the appellant was clearly admissible under the pleadings, and could not properly be excluded. The Court was in error in the ruling in the second, third, fourth and fifth exceptions.

Judgment reversed and procedendo awarded.