
    Susong v. Ellis.
    1. Depositions. Exceptions. A deposition taken and not excepted to before the trial, is not affected by the fact that the deposition has been retaken by the same party excepted to and exception sustained. It is error to exclude the first deposition.
    2. Evidence. Threats admissible when. Threats of one not sued that he intended to take the tobacco in controversy, are admissible as evidence in defense of defendant in an action for forcibly taking and carrying away.the tobacco of plaintiff, citing Hensley v. State, 9 Hum., 243.
    FROM GREENE.
    Appeal in error from Circuit Court of Greene, February Term, 1872. E. E. Gillenwaters, J.
    
      Reeye, for plaintiff in error, with whom was R. M. BáRTON, who said:
    This is an action on the case commenced by C. Bowers in his life-time against the defendant in the Circuit Court of Greene county for nine boxes of tobacco taken by the defendant. At the June Term, 1871, there was a verdict for the plaintiff,. which was-set aside and a new trial granted by the Circuit Court. At the February Term, 1872, the cause was again submitted to a jury and verdict and judgment for the defendant, a motion for new trial overruled, and appeal in error to this court. I submit that the cause must be reversed.
    1. When the cause was called for trial, exceptions were filed to the deposition of J. S. J. Wilhoit, filed on the 20th of February, 1872, which were sustained. A previously-taken .deposition of this witness had been taken and filed on the 2d of September, 1871, to-which no exceptions had been filed. On the trial the plaintiff offered this deposition as evidence, but on objection by defendant, the court refused to allow the deposition to be read. Record, page 28. This was gross error. By sec. 3868, Code, all exceptions to-depositions for want of notice, because not filed in time, or for other causes going to the admissibility, and not the competency of the witness, or his evidence, shall be made and disposed of before the commencement of the hearing or trial, otherwise they will be considered as waived. This is not a discretionary rule of practice, it is the positive law that the court is bound to obey.
    
      But, singular enough, to say the least, the court founded his action upon the affidavit of the defendant (see p. 29), that in the year 1870 he was notified to take this witness’s deposition, and attended and cross-examined; that the subject matter of the same was identical with that of the deposition of the same witness filed in this case the 23d of September, 1871. Whether that deposition was filed or not he does not know.
    The plaintiff then read the affidavit of the clerk, found on pages 30, 31, showing that after the former trial, at the same term, the deposition of Wilhoit was filed, but never afterward seen. The court is referred upon this point to the affidavits explanatory of the struggle over Wilhoit’s deposition, and the singular fatality attending them. See record, pp. 93-104. The deposition was strong and almost conclusive proof of the plaintiff’s cause of action. Record, p. 30.
    2. The court erred in the admission of testimony. On page 80, Margaret E. Laughlin, over objection '(see pp. 78, 79), was permitted to prove that there was robbing going on before and. after J. W. Ellis come home and left. Andrew Waddle was leader of robbers.
    3. The court erred in admitting proof of threats by James Creamer that he would take the tobacco.
    4. The court erred in refusing to allow the plaintiff to prove that defendant Ellis was seen by witness Reeve on the day the tobacco was taken, one and a half miles from Hayworth’s, as rebutting proof to the alleged alibi.
    
    
      5. The court erred in allowing, over objection, the witness, John Johnson, to prove the statements of Hayworth as to the ownership of the tobacco. Green. Ev., 177.
    6. The charge misled the jury. No question of partnership arises in the case. What does and what does not constitute a partnership is foreign to the case, and misled the jury. The concluding remark of the court, that a different state of pleadings might attain different results, tended to increase the delusion. The question is, did the defendant take the plaintiff’s property.
    7. Upon the real issue in the cause, that the defendant took, or caused to be taken, the tobacco of the intestate of plaintiff, the verdict is not only unsupported by, but is directly in the face of all the proof, and for this reason, I submit, it was error to refuse a new trial.,. All of the witnesses prove facts that establish Ellis’s guilt beyond doubt.
    7. The question of partnership could only be raised by plea in abatement. Colyer on Part., secs. 668, 671, 672; Sto. Part., sec. 454. It was, therefore, error to charge that the value of the goods could not be recovered.
    Ingersoll & Robinson, for defendant in error.
   Feeemast,. J.,

delivered the opinion of the court.

This is an action brought for forcibly taking and ■carrying away nine boxes of tobacco, the property of Bowers. There were two trials in the court bélow. On the plea of not guilty, in the first, the plaintiff recovered, and a new trial was granted by the court. In the second trial a verdict was found for defendant, and plaintiff appeals in error to this court. Several errors are assigned for a reversal of the cause, some of which we notice briefly:

1. The rejection of the deposition of one Wilhoit by the court, when offered as evidence by the plaintiff, is assigned as error. The facts are that the deposition of this witness had been taken in 1871, and filed in September of that year. No exceptions were ever filed to this deposition. For some cause the plaintiff had retaken his deposition, which was filed with the clerk February 20, 1872. This last deposition had been excepted to, and exceptions sustained by the clerk. This exception seems to have been filed on the day the trial commenced.

The exclusion of the deposition, was clearly erroneous. No exceptions had been filed to the deposition, and the fact that plaintiff chose to get leave of the court to retake the deposition of this witness could make no difference, it did not preclude him from using the former deposition, to which there appeared no legal exception when offered. It is said in argument that the deposition was excluded by the court because it was taken without leave of the court; but if the fact was so, the exception should have been taken regularly' before the clerk before the trial commenced. The provision of the Code in sec. 3868 is, "all exceptions to depositions for want of notice, because not notified in reasonable time or for other causes going to the admissibility thereof — that is to the admissibility of the particular deposition — except to the competency of the witness or his evidence, shall be made and disposed of before the commencement of the hearing or the trial, otherwise they will be considered as waived.” The objection urged is only to the admissibility of this particular deposition, not to the competency of the witness or his evidence, and thereforecame too late — after the trial had been commenced. 'The testimony of the witness is material proof in the •cause for the plaintiff, as we .can see from the copy of it, made part of the bill of exceptions. It was, therefore, clearly error in the court to - refuse to allow it to be read on the trial.

2. Witness Laughlin was asked, “ was there not a robbing clan in the neighborhood before J. W. Ellis, the defendant, came home, and after he left, and who was the robbing clan?” She answered that there was such a clan, that they robbed her father, and Andrew Waddel was their leader. These statements were objected to by plaintiff as incompetent,, but the objection was overruled by the court. This was erroneous, as the testimony had no reasonable bearing on the iSsue joined between the ■ parties, and yet might serve, in the hands of counsel, to lead the jury to infer that the taking was by this clan. It ought to have been excluded as too remote, but if there were no other errors, we do not feel sure the case should be reversed for this, as it could have had rightfully but little influence in producing the conclusion sought to be proven by it.

3. It is objected that the admission of testimony of threats by one Creamer, that he intended to take the tobacco, made before the taking, was improper. We cannot see that this was error, however, under the rule laid down in Hensley v. the State, 9 Hum., 243, “that it is a legitimate mode of defense to a party charged with having committed an act, that another had committed it.” And the court say that “ any proof would be legitimate to establish this fact, which would have been legal against the individual upon whom it is attempted to place it if he had been, on trial therefor.” The testimony given in this case,, standing alone, would certainly weigh but little in producing the conclusion that - Creamer took the tobacco* but we cannot say it' was incompetent.

There may be, and probably are, other errors to be found in this record, but we have referred to. enough for a reversal of the case, and need not notice others. Let the case be reversed and remanded for a new trial.  