
    Able v. Sparks.
    A lending question is one which may be answered in the affirmative or negative, end suggests the desired answer in a matter material to the issue.
    In cases of conversations, admissions, or agreements the examiner may draw tho witness’s attention lo tho subject, occasion, time place, and person, and ask whether such a person said anything on the subject, and what he did saj'.
    Where testimony is improperly rejected the judgment must be reversed, unless the testimony was merely cumulative and could not have changed the result.
    Appeal from Nacogdoches. The plaintiff Able claimed of the defendant Sparks the sum of live hundred dollars, the price of a horse sold defendant on the 1st of Januaiy. 1841.
    The plaintiff proved by a witness, John Able, that he had sold the horse to the defendant some time in 1840 or tiie early part of 1841 for five hundred dollars; that, shortly after the commencement of the suit witness heard defendant say that the plaintiff liad sued him for more than defendant owed him; that lie did not owe him more than two hundred and fifty dollars, and not that on a just settlement. The answer of James Cook to interrogatories were then offered in evidence. He stated that the defendant had bought the horse, and liad admitted to the witness that he was to pay five hundred dollars. The third interrogatory and the answer were excluded. They were expressed as follows : “ Did yon ever hear tiie defendant Sparks state that he did or did not owe me anything on account of the horse mentioned in tiie foregoing interrogatory; and if so', state what he said upon the subject, and when, and whether before or after tiie commencement of tills suit? Answer: Sparks told me that Able could not by any means make him, Sparks, out to he indebted to said Able. more, than two hundred and fifty dollars on said horse. Tiie time of the conversation, between myself and William C. Sparks as above stated I do not recollect, though it was about the time or after the institution of the said suit by tiie said Abie against Sparks.” The defendant proved by a wit. ness named Spencer that he came to Texas in 1S40; that the horse was then in possession of Sparks; that shortly after plaintiff told him that he owned one half of said horse, and offered to sell his half to witness. Some time after-wards plaintiff told witness lie had sold his interest in said horse to defendant for two hnndred and fifty dollars, and liad got iiis pay in mules, cows, and calves. Another witness "stated that lie saw defendant deliver to plaintiff a mule and some cows and calves, valued at two hundred and fifty dollars, in payment for said horse. Some evidence was introduced to impeach and sustain the credibility of the witness John Able, and it was agreed that the sole object of tiie statement of facts was to test the legality of tiie decision in ruling out tiie interrogatory and answer. Verdict and judgment for the defendant.
    
      Ochiltree fy Jennings, for appellant.
    
      J. II. Ardrey, for appellee.'
   Hempi-iilIi, Cli. J.

The ground of objection to the interrogatory is that it constitutes a leading question, and that it may therefore be properly overruled. Tiiis ground cannot be maintained. A leading question is one which may he answered in the affirmative or negative, and suggests the desired answer. It must indicate to the witness in a matter material to the issue such answer as will best accord with the interests of the party. (Greenleaf, vol. 1, see. 435; 2 Pothier, pp. 202, 203; Phill. on Ev., vol. 4, p: 719 of notes; 1 Stark, ou Ev., 149.)

Tlie role must have a reasonable construction. It does not exclude questions which are designed and would have the effect only of leading the mind of the witness to the subject of inquiry. (4 Wend. R., 247.) In eases of conversations, [35admissions, or agreements tlie examiner may draw the wit ness’s attention to the subject, occasion, time, place, and person, and ask whether such a person said anything on the subject, and what he did say. (See the above authorities.) Tlie interrogatory excluded is clearly within the rules prescribed on this difficult subject. It embodies no material fact which admits of a simple affirmance or denial, and its only effect would be to bring the mind of the witness to the point on which testimony was wanting. He had already testified to the fact of the sale of the horse, and if the defendant had made any admissions in relation to his indebtedness the plaintiff had tlie right to prove such admissions and the time at which they were made, and it is difficult to perceive liow the questions could have assumed a more general form or one less suggestive of a particular answer.

The ruling of tlie court was therefore erroneous, and the judgment must be reversed unless the testimony excluded was merely cumulative and could not have changed the result. It'would under the. evidence in this case be assuming too much to decide that the evidence could have had no effect on the minds of the jury. The evidence was contradictory. Two of the witnesses proved that the horse had been paid for, and two that two hundred and fifty dollars was due at or about the commencement of tlie suit. The evidence of one of tlie witnesses proving indebtedness was excluded, and this may have operated prejudicially to the plaintiff and secured the verdict to the defendant. We are of opinion therefore that the judgment should be reversed and the cause remanded for a new trial.

Judgment reversed.  