
    EDWARD WALSH vs. JNO. O. AGNEW.
    j. Where a party is present at the taking of depositions, and makes nó objection to the form Üf questions, it is too late to make them at tho trialv
    & Leading questions may be asked, in the sound discretion of the court, on a direct examination, where a witness is interested to defeat the party calling him, or manifests a disposition to evade questions, or appears reluctant and unwilling to give evidence,
    8, A bill of discovery may be read to a jury when offered merely as introductory to the answer
    
      Plaintiff instituted suit, with process of attachment against A, and attached as his, certain property which was claimed by B, who interpleaded: defendant agreed with plaintiff that if he would permit the attached property to he delivered to B, to be sold, he would pay plaintiff the amount of the proceeds of the sale, or deliver to him similar property, in the event that the interpleader suit should bo finally decided against B. Hold—
    1st. That to entitle plaintiff to recover upon this agreement of defendant, it was not necessary to prove that the property attached belonged to A; the determination of the interpleader in favor of the plaintiff, fixed defendant’s liability.
    2d. That although the defendant is a stranger to the interpleader suit, the record of it is proper evidence to show how it was determined.
    3d. That it was not necessary for the plaintiff to aver or prove if averred, that tho defendant had notice of the termination of the interpleader suit; nor to aver or prove a demand of tho money or property: nor to aver or prove that the defendant had notice of the nett proceeds of the sale of the attached property, to enable him to recover.
    5. In an attachment suit the return of the sheriff constitutes part of the record, and that error may he assigned in it.
    APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.
    STATEMENT GE THE CASE.
    This was an action of assumpsit brought by Sproule and Agnew agaiust the appellant Walsh. The declaration contained two special counts, and the common money counts:
    The first count stated that on the 28th July 1840, Sproule and Agnew sued McNulty, Shaw and Mitchell, in the St. Louis cirenit court by attachment, to recover the amount of $3108 87. That the sheriff levied the attachment on 700 pigs of lead, as the property of tho defendants in that suit, and that afterwards Crawford and Carson, of Baltimore, intorpleadod in the suit, and claimed the lead as their property. That Walsh requested Sproule and Agnew to give up their vigilt by attachment to the lead, and permit the same to be delivered up by the sheriff, and to bo sent by the agent of the interpleaders to Baltimore, to be there sold and converted into money. That Sproule and Agnew yielded to this request, and in consideration thereof, Walsh promised them that if the said suit of Sproule and Agnew against McNulty, Shaw and Mitchell should he determined in favor of S. and A. ; and if tho aforesaid interpleader of Crawford and Carson, should be determined against them, then Walsh would pay to S. and A. the nett proceeds of the sale of the lead. It was then averred that the suit against McN. S. & M. was determined in favor of the plaintiff and tho interpleader against Crawford and Carson, and that Walsh had notice thereof, at the county of St. Louis, on the day and year last aforesaid. Also, that the 700 pigs of lead were sent forward to Baltimore, to Crawford and Carson, and there sold by them for the sum of $1982 97, and that Walsh had notice thereof at said county on the 27th Oct. 1840. These was then an averment of the breach of the promise alleged.
    The second count was substantially the same as the first, except that it stated that Walsh promised S. and A. that if the suit of S. and A. against McN. S. & M. should be determined in favor of said S. and A., and the said interpleader of Crawford and Carson against them, then said Walsh would produce and deliver to the sheriff of the county of St. Louis 700 pigs of lead to be substituted in the place of the 700 pigs sent to C. and C. at Baltimore, and to be sold by said sheriff under such process as might be issued in favor of said S. and A. against McN. S. S>- M.
    On the trial of the cause the plaintiff offered in evidence the record of the case of Sproule and Agnew vs. McNulty, Shaw and Mitchell, to which tho defendant objected, as being incompetent, on the ground that he was neithor a party nor privy, hut stood in the attitude of a stranger to the proceeding; but the court allowed the record to be read to the jury, and the defendant excepted.
    
      Previous to tile trial, the plaintiff had taken and filed as evidence on his behalf, the deposition of Win. Crawford, junior, made in the city of New Orleans: and in due time thereafter the defendant filed exceptions to the answers of fhe witnesses to the 11, 15, 18, 21, 25, 30, 31, 34, and 35 interrogatorier, and also to the answers to ail the interrogatories that are leading. The court below sustained the exceptions to the answers to tho 11, 15, and 31 interrogatories, and to so much of the answer to the 34tb, as to exclude the testimony of tho witness as to his opinion of defendants liability. But the court allowed all the evidence of tho deposition to he read to the jury and defendant excepted. And afterwards, when the deposition was offered in evidence by the plaintiff at the trial, the defendant again took tho same exceptions, and with tho same result. The plaintiff also gave in evidence another deposition of tho same witness, previously taken and filed in the cause.- He also offered to read i n evidence the petition for discovery lie had filed in the cause, anri the defendant’s answer thereto, conjointly, the petition not as evidence of itself, but only as introductory of the answers, and to show their relevancy and responsive character, hut the defendant objected to the reading said petition in evidence, as being incompetent against him, and on the ground that it was but the declaration of the plaintiff made in his own favor. The objection was however overruled by the court, and the defendant excepted.
    The plaintiff also gave in evidence the deposition of Thos. J. Carson and Wm.C. Crawford, and also an account of the sales of said 700 pigs of lead, showing tho nett proceeds on the 27lh Oct., 1840, to be $1982 97. This account sales was admitted to be in the hand writing of the witnsss, Win. Crawford, Jr., and on its being offered in evidence it was objected to by the defendant as being morel}» the admission of said Crawford, and therefore incompetent as against this defendant.
    The record given in evidence by tho plaintiff, as mentioned above, corresponded in all material points with that set out in the declaration.
    There was no evidence before the jury that before tho commencement of tile suit, the defendant had any notice of the determination of the aforesaid suit of S. & A. vs. McN. S. M., nor of the interpleader of Crawford and Carson for tho load attached therein. Nor was it shown that a demand was made upon the defendant Walsh before the commencement of this suit, for the nett proceeds of the sale of said lead, nor for tho return by him to the sheriff of St. Louis county, of 700 other pigs of lead, to be substituted in placo of the 700 pigs that had been sent forward to Baltimore.
    When the case was submitted to the jury, the defendant prayed the court to give the following instructions to the jury :
    1st. Unless the jury find from the evidence in the case that the 700 pigs of lead attached in the case of S. & A. vs. McNulty Shaw and Mitchell, was the property of the said McN. S. and M., they will find for the defendant.
    2d. Unless the jury shall find from the evidence that before the commencement of this suit the defendant bad notice of the determination and result of the interpleader of Crawford and Carson in the case of S. and A. vs. McN. S, & M. they ought to find for the defendant.
    3d. Unless the jury shall find from the evidence that previous to the commencement of this suit, the plaintiff demanded of the defendant tile nett proceeds of the 700 pigs of lead stated in the sheriff’s return to have been attached in tile case of S. and A. vs. McN. S. & M., they will find for defendant on the first count of the declaration,
    4th. Unless the jury shall find that previous to the commencement of this suit the plaintiff made a demand upon the defendant to produce and deliver to tho sheriff of the county of St. Louis 700 pigs of lead to be substituted in tlio place of the 700 pigs that had been sentto Crawford and Carson, they will find for the defendant on the 2d count.
    5th. The court instruct the jury that there is no evidence before them that the 700 pigs of lead nor any other number were attached in said causo of S. and A. vs. McN. S. and M.
    6th. The record of the case of S. and A. vs. McN. S. # M. given in evidence by the plaintiff, is not evidence that 700 pigs of lead were attached in said cause.
    7th. Unless tho jury find from the evidence that the nett proceeds of the 700 pigs of lead were made known io tho defendant before tho commencement of this siit, they will find for the defendant.
    The court refused to give the foregoing instructions, bnt gave to the jury the following:
    If the jury find from the evidence that the plaintiff' attached certain lead as the property of McNulty Shaw and Mitchell, and that the defendant agreed with the plaintiffs that he would be responsible to them for the lead or the value thereof, in case they would suffer it to go forward; provided it should be determined that the said lead was subjected to said attachment, and that relying upon such promise, said plaintiffs suffered the lead to go forward, and if the jury find also from the evidence that it was afterwards determined that said lead was subject to said attachment the defendant is liable.
    To the refusal by the court to give the instructions prayed by the defendant, and to the giving the last named by the court, the defendant excepted. And afterwards the defendant in due lime moved for a new trial, assigning'therefor the ordinary reasons, including both tho errors of law and fact, of which the defendant complained, which motion was overruled by the court and the defendant excepted.
    Polk, for appellant.
    íst. The common pleas court ought to have sustained, the defendant’s exceptions to the answers of the witness Crawford, taken in the city of New Orleans, to the 18, 24, 25, 30, and 35 interrogatories of tho plaintiff, The said interrogatories are leading in their character, and the answers ought to have been excluded for that reason, 1 Stark ev. 149.
    2d. Tho petition filed by the plaintiff' for a discovery from the defendant, was incompetent evidence for the plaintiff. It is not only a statement made by the plaintiff, but it is made after the commencement of tho suit, for the purpose of the suit, and of making a case for the said plaintiff. Nor was there any necessity for reading said petition in order to explain the answer of the defendant, said answer being responsive to tue interrogatories addressed to the defendant, and fully explained by said interrogatories.
    Tlie great question in this, case was whether tho lead was released from the attachment of S. and A. upon the promise of Walsh to become responsible for it in case of the plaintiff’s success in the attachment suit. Now, aside from the statement of Agnew in the petition for discovery, there is no position or direct proof of any such promise. There is nothing more than a few facts from which only,the remotest inference of any such promise may be drawn. In such a state of case then, how dangerous was it to the interest of the defendant, "Walsh, or how favorable to the success of the plaintiff, to allow the statement in the petition to be read.
    3d. If the court below was right in refusing the first instruction asked by the defendant, then the plaintiff in this case would l)e entitled to recover against the defendant even though it should bo shown that the lead attached belonged to another person than the said McN., S. and Mitchell tho defendants in the case in which the same was attached. Or in other words, although they had attached lead that McN. S. & M, did not own, and to which therefore they could get no title by the attachment, yet they could recover from Walsh the value of the lead by allowing it to go forward to Baltimore.
    4th. The plaintiff was r.ot entitled to a verdict in this case without showing that the defendant had notice of tho determination aud result of the interpleader of Crawford and Carson in the" case of Sproule and Angnow vs. McNulty, Shaw and Mitchell. There was no evidence before the jury under the common counts—no evidence of an account slated—nor of money lent and advanced— nor of money had and received—nor of goods, wares and merchandise sold and delivered. The real cause of action sued for, was net forth in the two special counts ; and under those couuts the testimony was offered.
    Now notice is averred in both of these special counts^ with time and place as a substantive, and material fact as much indispensable (as these counts show) to the plaintiff’s recovery as any other averments contained in the counts, and being so averred, it was incumbent upon the plaintiff to prove them in order to a recovevv. For the probata is always co-extensive with the allegation. 2 Tidds JProc. 734.
    And sometimes averments that need not have been made, for the reason only that they were so made. 1 Chit, PI. 319-20 side paging.
    But in this case it was not only necessary to prove notice, because it was avered, but it was necessary to prove it in order for the plaintiff to show himself entitled to recover, and it was necessary to aver it in the declaration, in order that it should show alegal causeof action on its face.
    By the very terms of the promise set up in the two first and special counts, there was no obligation or liability upon the defendant only upon the suit of S. and A. vs McN. S & M. being decided for the plaintiff, and the interpleader of Crawford and Carson being decided against them. And these were events not specially within the knowledge of the defendant Walsh, but on the contrary, specially within the knowledge of the plaintiffs Sproule and Agnew, because they were the parties plaintiffs in the case against McNulty, Shaw and Mitchell, and also parties in the aforesaid inter-pleader. In such case notice must be avered and proved. 16 Vir. ab. p. 5 pi. 12 & p. 6 pi 2; page 7 pi. 11; 1 Sand. Pi. & Ev. 132.
    The necessity of proof of notice by the plaintiff, was expressly raised by the defendant’s 2d instruction, and the 3d, 4th and 7th instructions prayed by the defendant, embody similar propositions. The 3d and 4th instructions confined the proposition expressly to the 1st and 2d counts.
   Judge Ryland

delivered the opinion of the court.

The errors assigned in this case are as follows :

u 1st. The court of common pleas admitted illegal and incompetent evidence to be given to the jury by said appellees, notwithstanding the same was duly objected to by said appellant.

2d. The said court refused to give to the jury instructions prayed by the appellant, when by the law of the land said instructions ought to have been given by said court to the jury.

3d. The said court gave to said jury instructions which were illegal, and ought by the law of the land to have been refused.

4th. The said court overruled said defendant’s motion for a new trial herein, whereas by the law of the land the same ought to have been sustained.

5th. The said court rendered judgment in the case for said appellees, whereas by the law of the land judgment ought to have been rendered for the appellant.”

From the statement of the facts in this case, and from the errors assigned', it becomes necessary to look into the evidence as it appears from the record to have been given to the jury.

The main objection to the deposition of William Crawford, Jr., as appears from the record, consists in the leading character of the questions put to the witness by the plaintiffs.

This deposition was taken in the city of New Orleans, and from it I find the defendant was present by his counsel, cross-examined the witness and made- objections, but not in regard to the mode of asking the questions. No objection appears to have been made at the time of taking the deposition to the manner in which any question was put— some of these questions are what we call “leading questions, ” but I am not disposed to find fault with the court of common pleas in its action in overruling the exceptions taken by appellant to these questions. From a careful examination of the deposition, I have no doubt that justice required leading questions to be suffered to be asked this witness. He is obviously an unwilling witness, and the officer before whom his deposition was taken would have acted properly in suffering leading questions to be put to this witness, and overruling objections to that effect, if any had been made. None were however made at the time. It is too late to except to these questions on the trial; and this court so decided in the case of Glasgow vs. Ridge & Allen, 11 Mo. Rep. p. 34. In the case of Sheeler vs. Speer, 3d Birney’s Rep. 130,1 find this point decided in the same way by the supreme court of Pennsylvania. In the case in; Birney, the deposition contained the following questions : 1st. Did you not hear Mr. Sheeler say that he did not care the devil had the furnace, if he had his money, but that he was afraid he would never get his money ? Ans.—Yes I did. Did you not hear Mr. Sheeler say, that in a few days, Mr. Speer would be broke up, and they were all working for nothing? Ans.—Yes, I did. ” To this deposition the defendant’s counsel objected, on the trial in the court below, because the questions were leading ; the court permitted the deposition to be read, and signed a bill of exceptions, and this point came up in the supreme court. Chief justice Tilghman 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.” In Woodman vs. Coolbroth, reported in 7th Greenleaf Reports 181, the same doctrine is held: “ when and under what circumstances a leading question may be put, is a matter resting in the sound discretion of the court, and not a matter which can be assigned for error. ” Greenl. cv. sec. 435. Leading questions are permitted to be asked on a direct examination, where the witness is interested to defeat the party calling him, or manifests a disposition to evade questions, or appears reluctant and unwilling to give evidence. There is nothing, then, in my opinion, wrong in the court below so far as respects the deposition of the witness, Crawford, taken in New Orleans.

To support his action, the plaintiff, to show the determination of the suit in his favor against McNulty, Shaw and Mitchell, and also the determination of the interpleader of said suit by Crawford and Carson claiming the attached property, in his favor; to do this, the record of the suit against McNulty, Shaw and Mitchell in favor of plaintiff, as also the record of the interpleader; that is, the record of the attachment suit and interpleader was not only competent evidence, but was indispensible evidence, The liability of the defendant depended upon the result of the issue made on the interpleader ; and thus the determination of the controversy became a part of the plaintiff’s title,” and in such cases the record is clearly competent evidence. 1 Greenl. ev. secs. 527, 538, 539; Lane adm’r. vs. Clark adm’r. 1 Mo. Rep, 657 (old edition.)

I find no error in the court below in suffering the bill of discovery to be read as it was done in this suit. It was not offered, nor was it received as any evidence, but was merely read as introductory to the answer, and was so declared at the time by the plaintiff’s counsel, as appears from the bill of exceptions in this case. The bill and answer-may be considered nothing more than the examination of the party as a witness. The bill of petition may be regarded as a mode of prepondering interrogatories, and is as pertinent and proper to be read as an interrogatory in a deposition—in neither case is any statement or suggestion of a fact evidence, but in both cases they are read merely as introductory to the answer.

The original account of the value of the lead admitted to be in the hand writing of Wm. Crawford, to whom the lead was sent by the defendant, might well be admitted. From Crawford’s deposition it appears that there was an account of the sale of the lead showed to him, and by him stated to be correct. The bill of exceptions shews this to be the original account of the sale of said lead, in the hand writing of Wm. Crawford Jr., admitted indeed to be his hand writing. I see nothing wrong therefore in suffering it to be read to the jury. Indeed, I consider Wm. Crawford Jr., so far as the sale of this lead is concerned, as the agent of the defendant in this case. I have now disposed oí the error first assigned, which relates to the incompetency and illegality of the evidence admitted by the court on the trial of this case below. I shall now consider the second and third errors assigned, which involve the correctness of the court in refusing the instructions prayed for by the defendant, and also in giving the instruction upon its motion, as appears from the bill of exceptions. The defendant’s instructions appear in the statement of the case as above. As to the first instruction, the court committed no error in refusing it, because in this action it is no wise material to whom the lead belonged. The contract between plaintiffs and defendant does not make it a condition precedent that the lead attached should be the property of McNulty, Shaw and Mitchell; but the liability of the defendant attached on the final determination of the issue on the interpleader. It was therefore not necessary for the plaintiff to aver that the lead was the property of the defendants in the attachment suit, nor was he bound to prove the lead to be theirs. The only fact on which the defendant Walsh’s liability depended, was averred and was proved, namely, the determination of the interpleader against Crawford and Carson.

I will notice the 5th and 6th instructions next. I consider the record of the attachment suit evidence that the lead was attached—evidence of a high character. The return of the sheriff is part of the record—. and this court has decided that mesne process, and the sheriff’s return thereon, do constitute a part of the record, and that error may be assigned in them. 1 Mo. Rep. 336 (old edition) Cabeen vs. Douglass ; Ibid 534 Harrison, Green and Delany vs. the State. There is no error therefore in refusing these instructions.

I will now notice the 3d and 4th instructions. There is no averment in the first count of a demand of the nett proceeds of the sale of the lead, nor in the second count of other lead in substitution of that attached. I do not consider it necessary that any special request should have been averred in either count; and if such be averred, I do not consider it necessary , in this case, to prove such request, neither from the contract nor the manner of declaring thereon. No error therefore in refusing these instructions.

I do not consider that there was any necessity for the plaintiff to aver notice to defendant of the termination of the interpleader; and should there be such an averment in his declaration, I look upon it as mere surplusage, and not requiring proof 1st Ohitty’s plead. 232; 1st Saunders on plead, and ev. 130, 131, 132; 1st Chitty’s pies. 320. Nor was it necessary that the plaintiff should aver that defendant had notice of the nett proceeds of the sale of the lead—and if such averment be made, I consider it merely as surplusage, and need not be proved. Under this view of the case, then, there was no error committed in refusing the 2d and 7th instructions; which disposes of all that were asked for by defendant.

It now remains for me to consider the instruction for the plaintiff, which the court gave of its own accord. This instruction simply informs the jury, that should they believe from the evidence, that the plaintiff has proved all the material facts of his case, stating them in the order in which they are averred in his declaration, he should have a verdict. I find no fault in the instruction, nor had the defendant any cause to complain of it. There is nothing, then, in the errors assigned, calling for the action of this court to reverse. I find no error in the refusal of the court to grant a new trial, or in giving the judgment for the plaintiff, upon the verdict of the jury. My brother judges concurring in this opinion, the judgment of the court of common pleas is affirmed.  