The errors assigned are as follows: '(1) There was error in sustaining the exception to that part of defendants' plea which sought the recovery of profits, and in rejecting defendants' offer of evidence in support of the plea; (2) the court erred in overruling the defendants' motion to suppress the deposition of Odell.'
We will consider these assignments in the reverse order in which they are stated. The points made against the deposition of Odell by counsel for plaintiffs in error are that it was not taken under any provision of the Revised Statutes of the United States, and that section 914, Rev. St., relating to the adoption by the federal courts of the forms and modes of proceeding in civil causes in the state courts, has no application to the present inquiry. It will be observed that these points do not relate to the competency of the witness whose deposition was taken, or to the admissibility of the evidence given in it, but are based solely on objections as to the form of the commission and the manner of taking the deposition. The record shows that the cause was at issue May 20, 1886. The commission to take the deposition of the witness Odell was signed January 4, 1887. Notice of the issuing of the commission was served on the defendants, and they filed cross-interrogatories in the premises, at the same time making the following waiver: 'We waive copy of interrogatories, and consent that commission may issue upon the original, direct, and cross interrogatories. [Signed] LINDSLEY & MCCORMICK, Att'ys for Defendants.' As already stated, the deposition was filed in the case on the 22d of January, 1887, and opened, at the request of the attorney for the plaintiff, on the 5th of February following. The motion to suppress the deposition was not made until the 8th of February, when the case came on for trial. In our opinion, the motion in this instance was too late. The counsel for defendants, by waiving copy of the interrogatories, when notice of them was served upon them, and consenting to the issue of the commission, and practically uniting with plaintiff's counsel in executing it, by adding their own cross-interrogatories, and withholding the objections until after the trial had begun, must be considered as having waived such objections. It is the settled rule of this court that the failure of a party to note objections to depositions of the kind in question, when they are taken, or to present them by a motion to suppress, or by some other notice before the trial is begun, will be held to be a waiver of the objections. While the law requires due diligence in both parties, it will not permit one of them to be entrapped by the acquiescence of the opposite party in an informality which he springs during the progress of the trial, when it is not possible to retake the deposition. Shutte v. Thompson, 15 Wall. 151, 158 et seq; Bank v. Seton, 1 Pet. 299, 307; Winans v. Railroad Co., 21 How. 88, 100; York Co. v. Railroad Co., 3 Wall. 107, 113; Doane v. Glenn, 21 Wall. 33, 35; Buddicum v. Kirk, 3 Cranch, 293, 297; Rich v. Lambert, 12 How. 347, 354.