Opinion of the Court.

THIS is an appeal, taken by the plaintiff in the circuit court, from a judgment for the defendant in an action of debt.

The errors assigned question the correctness of the «pinions of the circuit court, in admitting to be read as evidence two depositions taken by the defendant, and in refusing to grant a new trial on motion of the plaintiff; to both of which opinions the plaintiff ex*78cepted. On the latter point, we hare no hesitation in saying, that the decision of the circuit court was correct. The evidence, even exclusive of the depositions which were objected to, is, in our opinion, amply sufficient to sustain the verdict for the defendant, and to justify the circuit court in refusing to grant a new trial. But we cannot accord with that court in the propriety of admitting the depositions. Several grounds were assumed in support of the-objection to the depositions. None of these, however, are in our opinion tenable, except one, which is, that the interrogatories put to the witness are all leading ones. The circuit court overruled this ground of objection; because, in its opinion, the interrogatories were not fully of that character, and because the objection ought to have been made before the commissioners who took the deposition.

But most clearly, the circuit court was mistaken in supposing that the interrogatories were not of the character denominated leading. The depositions consist entirely of interrogatories and answers; and the uniform style of the interrogatories is, “Did'you not see this?” or, “Didyou not hear that?” precisely the style of the examples given by writers upon the subject of leading interrogatories. 4 Tuck. Black. 449.

It is equally clear too, we think, that the circuit court was mistaken in supposing that the objection ought to have been made before the commissioners who took the depositions. The office of the commissioners was merely ministerial and not judicial. They had authority to take the depositions, hut not to decide on their validity; and it would be obviously absurd to require the objection to be made where it could not he decided. Besides, the rule is, that a deposition taken upon such interrogatories cannot he read; which necessarily implies that the objection must be made when the deposition is offered to be read'..

It is, however, contended, as there was sufficient evidence exclusive of the depositions to, justify the verdict of the jury, that the error of the court in admitting the depositions to be read, could not have prejudiced the plaintiff, and that it ought to be disregarded This, would, no doubt, have been correct, if the evidence exelusivé of the depositions had been of a nature to conclude the plaintiff from controverting it, or if the *79objection to the admission of the depositions had beeh made only upon the motion for a new trial. But the • evidence exclusive of the depositions was not conclusive upon the plaintiff, and amounted only to that which is denominated probable, the weight of which belonged exclusively to the jury to determine; and this point was made, not on the motion for a new trial, but by an exception taken to the opinion of the court when the depositions were read. We cannot, therefore, say that the error in admitting the depositions was not to the prejudice of the plaintiff, or that this court ought to disregard it on the g'round of its not being made at the proper time.

The judgment must be reversed with costs, and the cause be remanded for new proceedings to be had not inconsistent with this opinion.

The following petition for a re-hearing was presented:

The defendant, by his counsel, respectfully petitions the court for a re-hearing of this case, upon the ground that the court has mistaken the law on the point on which they have reversed the judgment of the court below.

The court below permitted the reading of Pleasant Craddock’s deposition, taken before two justices of the peace in the state of Tennessee, who acted under a commission from the court where the suit was depending; and after the jury were sworn, the plaintiff’s counsel objected to the reading of the depositions, because the questions put by the defendant in taking the depositions were leading questions. The court below overruled the objection, because no notice had been previously given of it, by objecting to the questions before the commissioners, when they were put to the witness. This court determines that the court where the cause is tried is the place, and on the trial the time when the objection should be made. It is admitted,the opinion of that court would be paramount to any decision of the commissioners who take the depositions, and the parties would have a right to bring the question again before the court. But it is contended, that the evidence, of a witness is competent to the proof of a fact, if it is, all obtained by leading questions; and a party is excluded frotp asking his witness leading ciuesi *80iions, when that kind of questions is objected to by his adversary; and then it is matter of discretion with the court to allow or disallow them, according to their opinion of the bias of the witness; but if not objected to, it is surely too late to move to exclude such testimony after the questions have been asked and answered without objection. The objection to leading questions is one that must be made to the examination, and not to the testimony afterwards. A different rule, and such as the court adopts in this case, would never fail to produce surprize and great injustice to the party whose evidence is so excluded. Leading questions are more frequently asked through unskilfulness or inadvertence, than a design to influence the answer of a favorable witness; and if such a question was objected to at the time of asking it, the party would shape or modify his question so as to avoid the objection; or if he still per* sisted in it, no hardship would arise if he should lose the benefit of his testimony on the trial; but when no objection is made by the adversary party to the mode of asking the questions when taking the deposition, should not his obj ection, if made on the trial, be allowed to go to the credit, and not the competency, of the testimony? This doctrine is not founded alone upon an opinion ofits expediency, and being calculated to subserve the purposes of justice; but upon the authority of adjudged cases. See 3 Binny 130. 6 Binny 483. Phil. Ev. 206. note (c) which refers to the cases in Binny.

All which is respectfully submitted.

The court, however, overruled the petition.