This suit was brought to "recover money belonging to the plaintiff below, against the appellant, received by him. It is alleged that the money had been taken from the plaintiff, in California, by one Smock, and that it was after-wards delivered to the defendant in the Court below, Mathis, the appellant in this Court. There was a judgment, on the verdict of the jury, for the plaintiff; a motion for a new trial, which was overruled ; and defendant appealed.
The error assigned, on which appellant asks a reversal of the judgment, is the overruling exceptions of the defendant to the reading of the answers of the witness Avery to interrogatories 11th, 18th and 14th, in evidence, to the jury.
The objection to the answer to the 11th interrogatory was, that the interrogatory was a leading one to the witness. It is as follows : “ Were you and the friends generally of said “ Buford requested to keep a look out for said money-thief, and “ to apprehend the same ? and was the said Mathis so request- “ ed, and to receive from him, if caught, the said money lost ?” It has been a difficult question to establish a fixed rule for determining whether a question is a leading one or not, and one that strikes me should be left in a great degree to the discretion of the Court, particularly when the evidence is oral, before the Court and jury; but when it is taken by interrogatories, the discretion should be more restricted. When a witness is giving evidence before the Court and the jury, much may be collected from his manner to indicate, whether he was a willing witness, ready to respond in a way most to promote the interest of the party calling him. If, however, he clearly manifests an unwillingness, to testify in favor of the party calling him, I believe the Court would be sustained in giving much latitude, in the manner in which the question was framed. This, however, being evidence taken by interrogatories, we must confine ourselves to the generally acknowledged rule on the subject, although it may not be altogether satisfactory. This rule is, “ A leading question is one that may be answered in the affimative or *156negative, and suggests the desired answer.” (See Abel v. Sparks, 6 Tex.R. 349.) Now, this rule is perhaps the best that could be laid down, and yet it is obvious that it is far from being satisfactory on principle. It must avoid suggesting the desired answer, when, to an intelligent witness, almost every material question would of itself suggest the answer, the propounder desired should be given to it; and it is to me exceedingly doubtful whether the objection to putting the question in this form has been of any practical utility, in arriving at the truth. It is however sanctioned by all the elementary writers on evidence, American and foreign. (See Greeleaf, Vol. 1, Sec. 435 ; 2 Pothier, 202, 203 ; 1 Starkie on Ev. 149.) We are therefore not at liberty to disregard it.
To test the interrogatory excepted to in this case, by the rule we have stated, it was certainly not in conformity thereto, and the answer to it ought"to have been excluded from the jury, and if this was the evidence on which the verdict of the jury mainly rested, we would reverse the judgment.
But it is clear, that the verdict was not based upon the answer to this interrogatory. It proved nothing, of itself, to establish the right of the plaintiff, nor the liability of the defendant. His right to recover rested upon the fact, that the defendant had received Ms money, and had not paid it over to Mm. The plaintiff, however, imagined that it was necessary that the answer should be in evidence by way of conducing to proof of the only essential fact; and he thought too, that it was necessary, as preliminary proof, that it should be shown, who started to California, who was the leader, who paid the expenses of the journey, who supplied the implements for working the mines, how reimbursement was to be made, that he had lost money at a particular camp, who was suspected of being the thief, who was requested to bo on the look out for the thief and money, all of which might have found place in his own journal of the tour, but had really no more to do with Ms rights against the defendant, than the nursery tales *157of old Mother Goose or Jack the Gian't Killer. What occurred on board the steamer San Louis was sufficient for his purpose, and all the other evidence might well have been striken out, and perhaps ought to have been. The evidence of Avery, given in answer to the 14th interrogatory, so far as it proves the acknowledgment of Smock, that he had taken the plaintiff's money, and that he saw him pay over to the defendant two hundred dollars thereof, I regard as legitimate testimony, and not drawn out by a leading question, although the answer is incumbered with much that ought not to have been there. This was sufficient evidence to sustain the verdict; and with it, it is not possible, on any reasonable hypothesis, that the verdict could have been different. The judgment is therefore affirmed.
Judgment affirmed.