
    John Page versus William C. Weeks.
    In replevin, the defendant justified as a deputy sheriff, alleging the property in the chattels to be in A. B. and C. D., and that he had attached a moiety as the property of A. B. The issue being on the property of the plaintiff in replevin, C. D. was a competent witness to prove the property in himself and A. B. t
    t See Ladd vs. Billings, 15 Mass. Rep. 17.
    This was a writ of replevin, brought against the defendant, a deputy sheriff for this county, for twenty-one * barrels of oil, which the defendant had attached as the property of John Page, jun., at the suit of Thomas Green, then and for some months before a creditor of the said John Page, jun. The defendant pleaded, that the said oil, when attached by him, was the property of the said John Page, jun., and Elijah Stearns ; and traversed the plaintiff’s property. Issue was joined upon the traverse.
    At the trial of the said issue, which was had at the last October term in this county, before Thatcher, J., after the plaintiff had produced his proof of property in himself, the defendant offered two depositions of the said Stearns, to prove the facts alleged in his plea, . and to disprove the plaintiff’s property in the oil. The plaintiff objected to the admission of these depositions, on the ground, that Stearns was an interested and incompetent witness, when called on the part of the defendant. The judge overruled the said objection, and admitted the said depositions to go in evidence to the jury; who, upon the evidence before them, returned a verdict in favor of the defendant. The plaintiff excepted to the said opinion and decision of the judge, and moved for a new trial on that ground.
    Mellen, for the plaintiff,
    insisted that Stearns was directly interested in the event of the suit. His evidence went to support the defendant’s plea, and to prove the property in himself. His interest rendered him wholly incompetent as a witness for the defendant. 
    
    Daveis, for the defendant.
    
      
       1 Esp. Rep. 103, 339, 343. — Peake's Cases, 84,174 —4 D. & E. 589.-5 Esp Rep. 272. — 2 Esp. Rep. 679. — 4 Esp. Rep. 164. — Buckland vs. Tankard, 5 D. & E 578.-- Emerton vs. Andrews, 4 Mass. Rep. 653.
    
   Parker, C. J.,

delivered the opinion of the Court. The interest of Stearns is not so direct as to make him incompetent as a witness. The property was attached as his partner’s, John Page. jun. He testified that it belonged to him and Page. The effect of this testimony would be, to render the moiety of it subject to the execution of his partner’s creditor. If the sheriff should proceed to sell the whole upon the execution, and the witness should bring his action for the moiety, he could not avail himself of the verdict in this case to support his demand. Indeed, it * would seem indifferent to him whether the issue, to which his testimony referred, was found for the plaintiff or the defendant; for he would have the same right to a moiety, if his story be true, in either event. The only effect of his' testimony would be, to leave the chattels in the hands of the deputy sheriff, that he might satisfy the execution out of the moiety supposed to belong to John Page, jun.

All the cases go upon the ground, that the verdict would be available for" the witness, where he is rejected as incompetent; except the case of Buckland vs. Tankard, cited in the argument; in which Lord Kenyon held, that the witness ought to be rejected, because his creditors would be better by the verdict one way. This appears to us but a loose objection to a witness ; and we think that the only intelligible rule is, that, to render him incompetent, he should be interested in the event of the suit; because the verdict will establish something in his favor or against him.

Judgment on the verdict.  