The opinion of the court was delivered by
Kennedy, J.The first error assigned, is an exception to the opinion of the court, overruling the reading in evidence to the jury, the second interrogatory, and the answer thereto of Samuel Lowry, a witness on behalf of the plaintiff, residing in the State of Ohio, whose evidence had been taken in the cause, under a commission taken out for that purpose. The interrogatory is in the following words: “ Did you ever hear the defendant state the terms on which he held, or was to have the property, on which he erected the sawmill adjoining Taylorstown? If so, state fully and particularly, whether he said he had purchased the ground and mill-site, or was only to hold it till he was paid for his trouble and expense, or what he said about it.” The counsel for the defendant, alleged that it was leading, and upon that ground objected to it, and the answer thereto being read in evidence; and the court being of the same opinion sustained the objection. In order to determine whether the court below decided correctly, it becomes necessary to ascertain the character of a leading interrogatory, and what have been deemed such. Willis, in his Digest of the Rules and Practice as to Interrogatories for the Examination of Witnesses, p. 7, says the following are accounted leading: “Did you not do or see such or such a thing? Did you not see this? Did you not hear that?” &c, And he adds, from 14 Vin. Abr. tit. Interr. (B) pl. 6, and note *164thereto, “ so are all such as are too particular, or seem to point to one side of the question more than the other.” He refers, in the margin, to Curs. Can. 242; Pr. Reg. (ed. Wyat.) 258; Harr. Pr. (ed. Nowl.) 259; Hind’s Pr. 317; 1 Eq. Ca. Abr. 232, (ed. 1727,) and General Orders in Chan, by Beames, 272, note; Viner’s Abr. tit. Interr. From the authorities relating to this point, and the .reason why leading interrogatories and the answers thereto are suppressed, and not permitted to be read in evidence, the following rule on the subject, I take it, may fairly be deduced; That where-ever the interrogatory is couched in such terms as to indicate distinctly to the witness the answer, that the party propounding it, Avishes him to give, it will be held leading. The examples given by Mr. Willis, which have been accounted leading, are clearly of this description. The clause, in the interrogatory in question, to which exception is taken as being leading, is, “or was only to hold it till he was paid for his trouble and expense.” If this clause had been “ or did he not say that he was only to hold it till,” &c., I should, without doubt, have considered it leading; but drawn as it is, and taken in connection with the context, and especially the sequel, I can not think it leading, or so indicating distinctly to the witness, the answer which the plaintiff Avished him to give. The court, therefore, erred in rejecting the interrogatory and answer to it.
The second error is also an exception to the decision of the court, in rejecting the testimony of James M’Cleary, another witness for the plaintiff, residing in the State of Ohio, which had been regularly taken under a commission issued according to an order of the court for that purpose. The objection to this testimony being read to the jury was, that though returned into the office of the prothonotary, and found there at the time of the trial, it was not endorsed “ filed” by the prothonotary, nor any entry made by him, of its having been filed in his office, according to an existing rule of the court, as it was alleged, requiring this to be done. The existence of such a rule was denied by the plaintiff’s counsel, and from the rules of the court, as produced, it would rather appear, that no such rule existed prior to the trial of the cause, though one to that effect has been made since. But independent of this, what is the object of such a rule? Is it not to show that the commission has been returned and filed in the office of the prothonotary. But Avhen the prothonotary produces the commission on the trial of the cause from the files of his office, though it does not bear his mark of having been filed, and he has made no entry of the kind, is not the fact of its being.found by him on the files of his office, as conclusive of its having been returned and filed there as if he had marked it so, or made an entry in his docket to that effect? Besides, in such case, the want of such endorsement or entry might fairly be presumed to have arisen from the omission of the prothonotary himself, unless something Avere shown to rebut it; and would be unreasonable to deprive the party of the benefit of his evidence, *165for such an omission of the clerk; and particularly in such a case as the present, where the adverse party was not only fully apprised, long before the trial of the cause in court, of the fact of the commission having been executed, returned, and filed, but of the contents of the testimony of the witness, so that he had ample time and opportunity offered him to meet and disprove it if he could. We, therefore, think that the testimony ought to have been admitted, and that the court erred in rejecting it.
The third error is an exception to the decision of the court, rejecting James Brownlee, offered as a witness on the part of the plaintiff, upon an objection made to his competency by the defendant, on the ground that he was interested in the result of the trial. We are unable to perceive that James Brownlee will either gain or lose by the event of this suit, let it be decided either for or against the plaintiff. Though the plaintiff derives his claim to the land from him, yet the release which the plaintiff has given, protects him from all claim or liability to the plaintiff, even if he should lose the land. As to the 200 dollars, part of the consideration of the purchase-money of the whole tract, which was, by the terms of the agreement for the purchase, not to be paid unless the plaintiff should get the land in dispute, the plaintiff again by a deed on his part, has waived this objection to the payment of the 200 dollars: and, consequently, is liable and bound to pay these 200 dollars, whether he succeeds in recovering the land or not. Brownlee, therefore, if he had not assigned, and thus parted with his right to these 200 dollars, would, at most, be nothing more than a creditor of the plaintiff, whose means for paying Brownlee, might be increased by a recovery of the land; but this is too remote an interest to affect the competency of the latter as a witness in the cause. We, therefore, think that Brownlee was a competent witness, and ought to have been admitted to testify.
The fourth error, which is the last, does not appear to us to contain any thing which would warrant a reversal of the judgment.
Judgment reversed, and a venire facias de novo awarded.