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 (a),.

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.

Decree reversed ; and costs in this court, and in the inferior court, adjudged to the appellant, against both of the defendants.