
    Wesley A. Phipps, Plaintiff in error, v. James L. Caldwell.
    Evidence. Deposition. Caption. Several suits. Two plaintiffs having suits against the same defendant in the same court, took, under one caption and certificate, the depositions of several witnesses, at the same time and place, a portion of the depositions to be read in one case, and a portion in the other. Held, on exception to one of said depositions, that it was error to admit it as evidence in either case.
    EROM HAWKINS.
    Appeal in error from the Circuit Court, E. E. Gil-lenwaters, J., presiding.
    The caption to the depositions excepted to shows that the depositions of six witnesses were taken on notice, three to be read in the case of Caldwell v. Phipps, and three in the ease of Farmer v. Phipps.
    
    The defendant appeared on the day specified in the notice; but the taking being continued the next day, he did not appear; and he was not present at the taking of the deposition of Susan Hagood, which was the one read on this trial.
    The exception taken was “because the depositions in the two distinct cases and with different parties plaintiff and defendant, and different causes of action, are taken under one caption and' one certificate, and without any agreement of parties that they should be read in both cases.-”
    J. T. Shields, for plaintiff in error.
    B>. McFablakd, for defendant.
   Deadebick, J.,

delivered the opinion of the Court.

This is an action of trespass, instituted against the plaintiff in error, for the alleged illegal taking of one negro girl and two horses, the property of the defendant in error.

At February Term, 1868, verdict and judgment was rendered against defendant below, and a new trial having been refused, he appealed in error to this Court.

There were pending in the Circuit Court two suits against the plaintiff in error, at the same time, to-wit: this cause and a suit of one George Farmer. Each of the plaintiffs below gave Phipps notice that he would take depositions of certain witnesses on the same day and before the same commissioner.

The depositions were accordingly taken at the time, and before the commissioners designated in the notice. They were all taken under the same caption, having but one certificate.

The caption recited that part of the depositions were to be read in one of said causes, and others were taken, to be read as evidence in the other of said two eauses.

Thus all the depositions constituted but one file, and upon this ground they were excepted to; the exception was sustained by the clerk; but upon appeal, was disallowed by the Court, and the depositions were allowed to be read upon * trial of the cause, to which defendant below objected.

Such a practice we hold, should not be tolerated. All our statutes, upon the subject, evidently contemplate that the depositions in each cause, pending in court, should be taken in and filed with the other papers in that cause.

The case of a change of venue in one of two causes pending in the same court, in which a deposition may have been taken, clearly illustrates the mischievous consequences, which must necessarily result from, such a practice. We hold, therefore, it was error to allow a deposition, taken in two distinct causes, to be read in either of said causes.

The judgment of the Circuit Court will be reversed, and the cause remanded for a new trial.  