
    RESPASS vs. WILLIAM MORTON and JOHN H. MORTON.
    
      April 19th.
    
    It is not error to grant leave to one defendant in a fait in chancerytotalce the depofitionof another defendant.
    If he be incompetent as a iritnefs, theob. jeétíón fliould fee made to reading tbetfe-pofition on the héatiñg,
    Ir án objection to the in-tereft of a wít-nefs be ootmade at the hearing in the court below, it cannot be made in this court.
    If an agent or Attorney mif-condu&s him-feif fo that it is neceflaryfor the injured party to refort to chan* eery, the agent or attorney ihali pay cofts,
    JOHN H. MORTON, was the agent of his father, William Morton, in managing a suit against Respass, and as such agent, entered into an agreement with Res-pass relative to said suit : after which, he violated the agreement; and Respass filed his bill in chancery, against both fathér ánd Son, for relief. The bill contained no charge that the son exceeded his instructions in violating said agreement. Nor was there in the answer of either of the defendants, an allegation that he was instructed to violate it. During the pendency of the causé, the inferior court gave leave to the defendant, William, to take the deposition of John. The deposition was read on the hearing of the cause, without being objected to. The inferior court dismissed the bill, on the ground that the agreement was hot proved.
    This court being Of opinion that the agreement was established by sufficient testimony, reversed that decree.
    
      
       Abfent, June* Bibb.
    
   The Opinion proceeded to state that the inferior court did not err in granting the defendant, William Morton, leave to take the deposition of his co-defendant, John H. Morton. If the complainant supposed John H. Morton, who acted as agent for William Morton, had such an interest as rendered hifn incompetent as a witness, he might have made the objection upon the hearing. No such objection having been made, the deposition was properly admitted ,.

Whenever an agent or attorney has so misconducted himself that it becomes necessary for the opposite party to go into chancery to be relieved from his act, he ought to pay costs. If the agent here had special instructions to violate this agreement, he should have shewn it.

Talbot for the plaintiff, Clay for the defendant.

Decree reversed ; and costs in this court, and in the inferior court, adjudged to the appellant, against both of the defendants. 
      
      fl) See Rhea and Ormsby vu Yoder, Pr- Dec. S02.
     