Fleming v. Hollenback
New York Supreme Court
This was an action of assumpsit, on a lost promissory note, claimed to have been made by John Hollenback, deceased, in August, 1842, for §3500, payable to the plaintiff. The cause was tried before Justice Allen, at the Tioga circuit, in October, 1848. On the trial of the cause the plaintiff offered to read in evidence the depositions of Robert L. Fleming and Samuel Herrick, taken under a commission directed to James Shaffer of Lemmahoning, Clinton county, Pennsylvania.
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This was an action of assumpsit, on a lost promissory note, claimed to have been made by John Hollenback, deceased, in August, 1842, for §3500, payable to the plaintiff. The cause was tried before Justice Allen, at the Tioga circuit, in October, 1848. On the trial of the cause the plaintiff offered to read in evidence the depositions of Robert L. Fleming and Samuel Herrick, taken under a commission directed to James Shaffer of Lemmahoning, Clinton county, Pennsylvania. The defendant objected to their introduction, on the ground that there fvas no return indorsed on the commission. The…
1Opinion of the Court
By the Court, Mason, J.
I am entirely satisfied, after a careful examination of the matter, that the court properly excluded the answers of Herrick and Fleming to the 4th interrogatories, on the ground that the interrogatories were leading. The most familiar rule of testing these interrogatories will prove them leading. (1 Phil. Ev. 221, 222. 2 Stark, on Ev. 123. 1 Id. 124. The People v. Mather, 4 Wend. 247.) And I am of opinion that the party cap make this objection upon the trial. The statute contemplates this gs the course to be pursued. The officer settling the interrogatories has no power…
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