Woodman v. Coolbroth

This argument was made in the last year; and the opinion of the Court was read at the last September term, as drawn up by Parris J. We are not satisfied that the verdict ought to be disturbed on account of the admission of Richardson’s deposition. In permitting leading questions to be put to a witness much is confided to the discretion of the court or magistrate before whom the examination is had. A witness may be so dull in intellect, or embarrassed through timidity, as not to be able to communicate intelligibly upon the points di [184] rectly in issue by a general and diffuse statement. The only mode by which testimony in such cases can be drawn forth is by direct questions, in some measure partaking of the character of leading interrogatories, propounded, however, in such form as not to suggest to the witness the answer which he is to give, but to free him from embarrassment and ensure a developement of truth. Or the person under examination may be what is termed an unwilling witness, in which case the party calling him would be indulged in putting leading questions to the utmost latitude permitted in a cross examination. In this case it does not appear that any objection was made to the interrogatories at the time they were propounded, either by the tenant or his counsel, although by the certificate of the magistrate before whom the deposition was taken, the tenant appears to have been present. In Sheeler v. Spear, 3 Binney, 130, it was decided that a leading interrogatory must be objected to at the time it is put to the witness. If no exception is then taken by the opposite party, the answer of the witness to the leading question cannot be opposed upon that ground, when his deposition is read upon the trial. C. J. Tilghman, in delivering the opinion of the court, says, “ the objection to the first interrogatory is, that it is a leading one. I do not think the question was properly put: but the defendant should have objected to it- at the time; he was present and cross examined .the witness. If it had been objected to it might have been waived. It was too late to make the objection at the trial.” The same doctrine is applied in Strickler v. Todd, 10 Serg. & Rawle, 63. ' Neither do we think that the tenant has reason to complain of the instructions’to the jury relative to the delivery of the deed* The jury were told that unless the deed was actually delivered by 'the grantor or some person acting for him, or came into the grantee’s possession by the approbation and consent of the grantor, nothing passed by it. No one pretends that a ceremonious delivery is requisite ; but the authorities are full in support of the position that an instrument purporting to be a deed obtained without the consent of the grantor is inoperative ;, and such were the instructions to the jury. It< is true, they were’ not told, in so many words, that a de [185] livery could not be revoked ; — that when once the deed was in the grantee’s possession by the consent of the grantor, the fee had passed ; but they were told so substantially ; and if, upon that point, the tenant had desired more particular instructions, it was his duty to move the court to give them, and, if improperly refused, all his rights would have been preserved. Upon the other point, the rejection of the office-copy, we think the tenant’s motion must be sustained. It is true, that according to the English practice, office-copies are inadmissible, and the party attempting to support title must do it by producing the original title deeds, not only to himself, but to those under whom he claims. This he is supposed to be able to do without inconvenience, as this evidence uniformly accompanies the title. It is not unfrequently the case that the owner in fee is possessed of all the original title deeds to his estate to a very remote period. But such is not our practice. Hence has arisen the rule that office-copies may be used in tracing title, until we come to the party himself, who, being presumed to be in possession of the original evidence of his own title, must produce it. But, although in the case at bar the person under whom the tenant claimed was present in court with the original deed in Ms pocket, and was even offered, by the tenant, as a witness, and the deed was within the tenant’s control and used by him on the rejection of the copy, yet we think it better that the rule, salutary in its general operation, should not be impaired or made to yield to the special circumstances of any case, and that the tenant should have opportunity of availing himself of its full operation. Indeed, we do not perceive that we have the right to deprive him of it. The verdict must, therefore, be set aside, and a new trial granted.