
    Jones v. Lucas.
    January, 1823.
    Depositions — Objections—When They Should Be Made.
    
    —Where, on a trial at law, a deposition is introduced. taken regularly under a commission, and an objection is made to some of the questions as leading questions, the court cannot suppress the improper questions and answers, after the jury is sworn; but the objection should be made to the court before the jury is sworn, and the improper questions and answers suppressed.
    Lucas brought an action of trespass on the case, in. the superior court of Mecklenburg county, against Jones, for a fraud_ in selling him an unsound negro. At the trial, the plaintiff offered in evidence, the deposition of Amy B. Jones, taken under a commission. The defendant moved the court to exclude from the jury, certain answers contained in the deposition, to questions which were leading ones. The court overruled the motion, and permitted the answers in question to go to the jury; to which opinion the defendant excepted. A verdict was rendered for the plaintiff, and judgment accordingly. The defendant appealed to this court.
    The case was submitted without argument.
    
      
      -Depositions — Objections—When They Should Be Made. — In Electric Supply, etc., Co. v. Consolidated Light, etc., Co., 42 W. Va. 584, 26 S. E. Rep. 188, it is said: “One assignment of error is that the court allowed the plaintiff to read a deposition of a witness whose deposition had already been taken, the objection being that no leave of court .was given to retake the deposition; but this objection ought to have been made the ground of an exception before the trial, and not first made when offered at the trial. This would work a surprise. Dickinson v. Clarke, 5 W. Va. 280; Jones v. Lucas, 1 Rand. (Va.) 268; Foster v. Sutton, 4 Hen. & M. 401: Long v. Perine, 41 W. Va. 314, 23 S. E. Rep. 611; Peshine v. Shepperson, 17 Gratt. 472; Bart. Ch. Prac. 758; Bart. Law Prac. 439; Doane v. Glenn, 21 Wall. 35. It was held that where objections do not go to the testimony of the witness, but to defects which might have been obviated by retaking, the objection made at the trial will not be heard. Such objections should be noted when the deposition is being taken, or be presented by motion to suppress. ” For further information on this subject, see mono-graphic note on “Depositions” appended to Field v. Brown, 24 Gratt. 74.
    
   JUDGE BROOKE,

*January 21. — delivered the opinion of the court.

The court is of opinion, that the objections taken in the bill of exceptions, to the deposition referred to, came too late. Although the questions were leading questions, calculated to inform the witness of the answers expected by the party propounding them, and therefore improper; yet, after the jury were sworn, it would have been irregular to suppress the deposition, there being no objection to the competency of the witness. Before the jury were sworn, on motion, the questions and answers objected to ought to have been suppressed by the court. Afterwards, and upon the trial, the objections could only go to the credit of the witness. The judgment is, therefore, to be affirmed. 
      
       Judge Cabell absent.
     