Sadler v. Murrah , 4 Miss. 195 ( 1839 )

Mr. Justice Trotter

delivered the opinion of the court.

Two errors have been assigned: — .1. The admission of the deposition of the notary in answer to the questions above specified. 2. The allowance of damages on the protest.

• In regard to the first assignment of error, it may be remarked, that it is not very easy to lay down any precise rule on the subject. On the one hand, it is clear that the mind of the witness must be brought into contact with the subject of inquiry; and on the other he ought not to be prompted to give a particular answer, or be asked a question, the obvious answer to which would be yes or no. But how far it may be necessary to particularise in framing the question, must depend upon the circumstances of each particular case. In a case before Lord Ellenborough, where it became necessary to identify one of the parties to a conspiracy, he permitted the prosecutor to point to the person, and ask the witness whether he was the man. So, where a witness is called to prove the handwriting of another, it is the common practice to show him the document, and ask him whether that is the handwriting of the party. 1 Starkie on Ev. 124. Objections of this sort should not be wantonly or captiously made, since it is to some extent always necessary to lead the mind of the witness. The objection chiefly becomes important when any conversation, admission, or agreement, is attempted to be proved, and where there may be danger, unless great caution is used, that an improper coloring may be given to the subject, by an artful structure of the questions.

■ In view of these well-settled rules, we do not feel authorised to pronounce the questions put to the notary in this case, to be leading questions within the meaning of the law. It is difficult to conceive how the mind of the witness could have been well directed to the several subjects of inquiry proposed, in any less objectionable mode than that adopted. It was desirable to know whether he held the office of notary in New Orleans, in January, 1837; and he is therefore asked to state whether he did. Can it be seriously insisted, that the reasons against leading questions, apply to a subject of inquiry, of the character of this? What danger was there that the witness might be led astray on that subject? The fact to which his attention was directed, was of public notoriety, and the only tendency of the interrogatory was to bring it to his attention, that the plaintiff should have the benefit of his answer, which could not possibly be controlled by the shape of the inquiry. It is desirable to know whether he protested the bill of exchange as notary, and he is next asked if he did so, and when? To this interrogatory, there can be no objection. The third question is, whether he gave Ihe requisite notices of the protest, and he is asked when they were given, in what mode, and to whom? There can be no objection to this mode of inquiry, and rve are not able to perceive in what other mode the interrogatory could have been framed. The only ground upon which a plausible objection can be raised, is the latter branch of the third interrogatory, where the witness is required to state particularly, whether the notices were mailed in time to leave by the first mail which left after the protest. But we think that; when taken in connection with the other members of the question, it is not so defective as to authorise the exclusion of the deposition.

As to the question of damages, which were allowed at the rate of five per cent, upon the protest, we are satisfied, that the objection which has been taken to the judgment on that ground, cannot prevail. The bill of exchange in this case was drawn subsequent to the act of 1836. That act provides, that suit shall not be brought before the maturity of the bill, on a protest for nonacceptance merely; allows no damages on domestic bills, and reduces those on bills drawn here on a sister state to five per cent., giving ten per cent, on foreign bills. The act of May, 1S37, provides, that no damages shall be allowed on bills drawn on a sister state, and gives five per cent, on domestic bills. Both acts embrace bills drawn, and to be drawn; and it is contended, that in respect to the damages, they were effectually disallowed on this bill by the last-mentioned act, although the bill had been drawn and protested before the passage of it. But we cannot persuade ourselves, that it could have been the design of the legislature to give to the act that operation. To do so, would most clearly be unconstitutional. The act of 1836, which allowed five per cent, on bills drawn on another state, was in full force at the time of the drawing this bill, and at the date of the protest. The holder under that law, had an undoubted right in action to the damages which were given by it, as much so, as he had tó the legal rate of interest; and it was not in the power of the legislature to divest that right.

The judgment must, therefore, be affirmed with damages and costs.