
    Barzillia Brown vs. John Foss.
    Whore a nonsuit was ordered, but to be taken off if the defendant should come in on the first day of the succeeding term and be ready for trial, and where it was eventually taken oil' and the action tried; it was held, that the action was so pending, after tile nonsuit was th us ordered and before it was taken oft', that a deposition might be taken in the action during the time.
    Objections that questions are leading, should be taken at the time the deposition is taken, or they will be considered as waived, and cannot be made at the trial.
    ExceptxoNS from the Court of Common Pleas, Perham J. presiding.
    The action, which was assumpsit for a quantity of clapboards, was entered at the Oct. Term, C. C. Pleas, 1835. To make out his case the plaintiff introduced the deposition of one Leighton, taken June 20, 1837. The defendant was notified, but not present. To the admission of this deposition the defendant objected, because at the time of the caption the action was not pending in court; and in support of his objection produced the Clerk’s minutes in the case, as follows. “ January Term, 1837. Brown v. Foss. 47th day, plaintiff nonsuit, to be taken off, if plaintiff comes in 1st day next term ready for trial. No costs for plaintiff. May Term, 1837. Brown v. Foss. January Term, 1837, plaintiff nonsuit, (no costs for two last terms,) to be taken off if plaintiff comes 1st day of present term, ready for trial. 42d day, continued on affidavit as before, no costs for plaintiff.” The nonsuit was at a subsequent term taken off, and the action tried at January Term, 1838. The Judge overruled the objection, and the depo-silion was read. On reading tbe deposition of one Maloon, tbe defendant objected to a question and answer, because the interrogatory was leading. The defendant had notice of the taking, but did not attend. The objection was overruled, and the question and answer were read in evidence. The verdict was for the plaintiff, and the defendant excepted.
    
      Cutting, for the defendant,
    contended, that as the nonsuit had been ordered before the deposition was taken, and was not taken off until afterwards, and after the time when liberty was reserved to take it off, the action was not then pending. By a nonsuit the plaintiff is out of court. 5 Dane, c. 175, art. 12, § 1, and authorities there cited. On the second objection, he referred to his argument in Rowe v. Godfrey, ante, p. 128, and 4 Wend. 231, and 6 Binney, 490, in addition.
    
      J. Appleton, for plaintiff,
    argued, that an action once entered is pending in court until some judgment is rendered upon it. Howe’s Pr. Nonsuit; 2 N. H. Rep. 324. And that the objection to the form of a question must be made at the taking of the deposition, or it comes too late. 1 Stark. Rep. 82 ; Woodman v. Coolbroth, 7 Greenl. 181; Allen v. Babcock, 15 Pick. 56 ; Potter v. Leeds, 1 Pick. 313 ; Talbot v. Cla?k, 8 Pick. 55.
   The opinion of the Court was by

Weston C. J.

A nonsuit had been entered in this case, but it was conditional. The action was not finally disposed of; and the very terms of the condition, upon which the nonsuit was entered, implied, that the plaintiff might have a trial, if he could be prepared. Ultimately the nonsuit was taken off, and the action tried. The suit must be regarded as pending, from its first institution, until its final termination. The deposition was therefore legally taken, to be used in an action actually pending.

As to the leading questions, they should have been objected to at the time the deposition was taken, that the questions might be put in a mode not exceptionable. The objection is now too late, as was decided, in Rowe v. Godfrey, ante, p. 128, to which we refer.

Exceptions overruled.  