
    Ritchie & Co. v. Lyne.
    [Saturday, May 11, 1799.]
    Evidence — Depositions.—Depositions taken In a suit with the factor, may he read In a suit with the principal, for the same cause.
    Ritchie & Co. brought indebitatus assumpsit, in the year 1768, against Lyne, for goods, wares and merchandizes, sold and delivered, and for money and tobacco, paid and advanced. Verdict and judgment for the defendant. The plaintiff filed a bill of exceptions to the Court’s opinion ; which stated, “that the defendant offered in evidence, the depositions of John Taylor and Gabriel Mitchell, to the reading of which, the counsel for the plaintiff objected; because, they appeared to have been taken in a suit between the said William Lyne as plaintiff, and Andrew Crawford 490 *defendant, lately depending in this Court, which abated by the death of the said Crawford; a copy of the declaration, in which suit was thereunto annexed. That the Court over-ruled the objection; it appearing, that the said Crawford was the same person mentioned in the plaintiffs’ declaration as their factor; that he had received due notice of the taking of the depositions ; and that it did not appear that the plaintiffs had any other representative, than the said Crawford, in Virginia. That John Ryburn, who was afterwards the factor or agent for the said plaintiffs, in Virginia, as well as the said Crawford, received due notice of the taking of the said Mitchell’s deposition. That, the suit brought by the said Tyne against the said Crawford, was a cross-action, founded upon the same dealings, which gave rise to this cause; in which the said Tyne claimed a balance as due to himself, which balance the present plaintiffs would have been answerable for, in the opinion of the Court, had the said Crawford lived, and a recovery thereof taken place. That the evidence, in the said depositions contained, related to the said Tyne’s dealings with the said Andrew Crawford, as factor for the said plaintiffs; and, upon those dealings, this action is founded.” The declaration, referred to in the bill of exceptions, counted on a contract betwixt the said William Tyne and the said Andrew Crawford, without mentioning or referring to the said Ritchie & Co. Verdict and judgment for the defendant; and from that judgment, Ritchie & Co. appealed to this Court.
    Warden, for the appellants.
    The depositions were inadmissible; because they were not taken in a suit between the same parties. Rowe v. Smith, in this Court, during the present term, [ante, 487].
    Marshall, contra.
    The cases are not alike; because Crawford represented his principal completely. Eor, such was the mode of doing business at that time, that the factor unavoid491 ably, and from the ^nature of the connection, stood in the place of his principal. So, that his contracts bound the principal, as he had the entire control over the business, and might be said to be the 'same, person with him. Now, here, was a suit with the factor, on behalf of his principal, touching the same subject with the present action; and, the objection is, that the Court did wrong in hearing testimony to those points, which can never be considered as a just ground of exception, or it destroys the relation which subsisted between them. It must, therefore, be considered as' a cause between the same parties; and, consequently, the District Court did right in receiving the testimony. There is no case which comes completely' up to the present; the nearest in principle, is that of a verdict in favor of a termor against a stranger; in which case, the verdict may be used in a suit with the reversioner; for, the reversioner would have been dispossessed by the verdict, if it had gone against the termor, and the stranger can have no prejudice, because he had liberty to cross-examine the witnesses. The case here, is the same in principle, because Ritchie & Co. would have had the benefit of the verdict had it passed in favor of Crawford.
    Warden, in reply.
    If it had appeared in the proceedings of the suit with Crawford, that the suit was with him as a factor, theie might have been some ground for Mr. Marshall’s argument. But no such thing does appear; and as it might have related to his own private affairs, the depositions in that cause were improperly admitted in this.
    Cur. adv. vult.
    
      
      See monographic note on “Depositions” appended to Field v. Brown, 24 Gratt. 74.
    
   LYONS, Judge.

Delivered the resolution of the Court, that the judgment of the District Court ought to be affirmed: That they were in fact cross-suits between the same parties in interest: That it appeared the factor who represented his principals had notice of the time and place of taking the depositions; and, therefore, might have cross-examined the witnesses if he had chosen to do so.  