¶1delivered the opinion of the court.
¶2This court is of opinion, that as the deposition of the said Hall was taken upon due notice and by proper authority, and that the said Hall was cross-examined by the plaintiff in error without objection at the time of taking the same, it was too late to object to reading the same as evidence on the trial of the cause, upon the ground of his alleged interest in the subject in controversy. Had that objection been made at the time of taking the deposition in the State of Ohio, the plaintiff could then have filed a release to the witness, and rendered him a competent witness, if be had an interest in the subject.
¶3And the court is further of the opinion, that the record shows the said Hall to have been the agent of the plaintiff in error for the purchase of wheat, at the time the defendant in error sold his wheat to Hall; and that the plaintiff in error having received the said wheat from the said Hall, and appropriated the same to his use, he ia bound to pay the defendant in error for the same.
¶4*116And the court is further of the opinion, that the circuit court did not err in refusing to permit the custom stated in the second bill of exceptions, to be proved on the trial of the cause; nor did the circuit court err in refusing to give the instructions asked by the plaintiff in error, or in giving the instructions set out in the second bill of exceptions.
¶5The judgment of the court below is therefore affirmed with costs.
¶6Judgment Affirmed.