The opinion of the Court was by
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.