#### Amos Wood *versus*Selden Braynard.

Where a deponent on the part of a plaintiff in replevin, stated that whatever the plaintiff should recover would go in discharge of a liability incuired by the plaintiff for the deponent, he was held to be incompetent to testify, by reason of interest.

Where goods not held under any legal process were replevied, and after entering the action of replevin the plaintiff became nonsuit and a return was awarded, the de-o fendant was allowed, as damages, interest at six per cent on the value of the goods from the time of the service of the writ to the entry of the judgment.

Replevin of a model of the state-house and a model of 'Westminster Abbey, in shell-work. The defendant, in his plea, traversed the allegation of property in the plaintiff, and issue was joined thereon.

The plaintiff, to prove his property, offered the deposition of Robert Henry, in which it is stated, that Wood, for the accommodation of Henry, indorsed a promissory note signed by Henry and held by Jonas Coolidge, for $ 1156, dated September 25th, 1826, payable in six months, and that on October 3d, 1827, Henry mortgaged to Wood the shell-work replevied, with other property, on condition that if Henry, within twelve months, should discharge so much of the note as Wood should be obliged to pay as indorser, the assignment should be void ; but that until default in the performance of the condition, Henry should retain possession of the property, and have power to sell it and apply the proceeds to the payment of the note ; and that by an instrument dated in June 1828, the *328transfer was made absolute. The deponent states, that he put t^le shell-work into the hands of Braynard to dispose of by a lottery ; that there were to be 600 tickets at three dollars each, and that Braynard was to have 100 tickets for his services and expenses ; that the deponent had received money froiy Braynard at different times, on account of the shell-work, he thought not exceeding $60 or $70, which was to be accounted for when the lottery was drawn ; that Braynard defrauded the deponent, and after the drawing, by Braynard’s account, only $ 100 was due to the deponent ; and that the deponent was insolvent. To the cross-interrogatory,— “ If Wood recovers of Braynard in this action the shell-work sued for, will Braynard have any claim on you for it, or for the debt you owed him” — the deponent answered, — “ I should not think hr had, as he has completely deceived me, and now holds posses sion of four of the articles of shell-work valued at 400 dollars.” To the cross-interrogatory, whether the deponent was not interested in the event of this action, the deponent answered,— “ I am certainly interested in the event of this action, •for if Wood prevails, I shall have the pleasure to know that he will be partly paid for the money which he was bound for to Jonas Coolidge.”

*Wilde*J.

rejected this deposition on account of the incompetency of the deponent, and the plaintiff became nonsuit; but if the deposition ought to have been admitted, a new trial was to be granted.

*J. Pickering*and *W. F.*Otis, for the plaintiff,

said that there was only an apprehension of interest in the deponent; which does not render him incompetent ; *Plumb*v. *Whiting,*4 Mass. R. 518 ; 2 Stark. Ev. 747 ; *Long*v. *Bailie,*4 Serg. & Rawle, 222 ; *Union Bank*v. *Knapp,*3 Pick. 96 ; *Gifford*v. *Coffin,*5 Pick. 447. The mortgage to Wood does not show that the deponent is personally liable to him; but if he is, Braynard likewise has a claim against him for advances. The deponent thinks Braynard has no claim against him, because he supposes Braynard has defrauded him ; but if he proved the fraud, it would not disqualify him. *Harris*v. *Smith,*3 Serg. & Rawle, 20, 23. The *onus*is on the party objecting to the competency of a witness. If the objection is of a doubtful nature, *329it affects only the credit. *Lessee of Henry*v. *Morgan, 2*Binnoy, 497.

S. *D. Parker, contra,*

cited *Emerton*v. *Andrews, 4*Mass. R. 653 ; *Miller*v. *Falconer,*1 Campb. 251 ; Peake’s Ev. (5th ed.) 168 ; *Marland*v. *Jefferson, 2*Pick. 241, [2d ed. 242, note 1 ;] *Corps*v. *Robinson, 2*Wash. Circ. C. R. 388 ; 3 Stark. Ev. 1647 ; *White*v. *Derby,*1 Mass. R. 239.

*Per Curiam.*

We think the deposition was rightly rejected on account of interest in the witness ; it appearing that whatever is recovered would go in discharge of a liability incurred by the plaintiff for the witness. We do not perceive any counter interest to neutralize this, for it does not appear that the witness was indebted to Braynard. On the contrary, if his story is true, Braynard is indebted to him, having property in his hands to a larger amount than his advances.

*Monsuit made absolute.*

*Parker*moved for a return of the goods replevied and for damages for taking and detaining them ; and he claimed six per cent on the penalty of the bond, for the time of the detention. He cited *Bruce*v. *Larned,*4 Mass. R. 616 ; *Mattoon*v. *Pearce,*12 Mass. R. 406.

*Pickering*and *Otis*said that two cases .only were provided for in *St.*1789, *c.*26, § 4 ; one, where the plaintiff in replevin neglects to enter and prosecute the suit, in which case the defendant may, upon complaint, have judgment for a return of the goods and “ damages for the taking, to the amount of six per cent on the bond the other, where “if, upon a trial of the issue, judgment shall be rendered for a return, the interest of six per cent upon the penal sum of the bond shall be taken as a rule for estimating the defendant’s damages, in case they were taken on execution.” The present case is not within either of these provisions, and the defendant should recover at common law his reasonable damages.

. The *Court*afterward allowed as damages, interest at six per cent on the value of the goods, from the service of the writ of replevin until the rendition of the judgment.1

1

**See Revised Stat. c. 113, § 30.