
    * REED FOR USE OF POLLY v. McGREW.
    Assumpsit to recover back money paid on a contract — evidence—competency..
    Upon the common counts to recover back money paid on a special contract, the contract is not evidence in the first instance; the circumstances ■which, make it evidence must be first proven.
    One who has covenanted to convey the land to the defendant, which he failed" to convey to the plaintiff, is a competent witness; if he have any interest, it is balanced between the parties.
    Assumpsit. The declaration contains the common count, for money had and received. Plea — non assumpsit.
    The suit was brought to recover back money paid upon a contract for the sale of land, which had not been complied with by the defendant.
    The plaintiff offered to read in evidence a contract for the-exchange of land, which was objected to on the part of the defendant.
   LANE, J.

The contract is not now evidence. If it is to be made-so because it is connected with, or dependent upon some other fact to be proved, that fact must be first introduced, if required by the-defendant, in order to open the door for this evidence.

The defendant then offered to read a deposition of one Henline, who had covenanted to convey the land to the defendant. It was objected to this, that the witness was interested, and might discharge his own liability.

LANE, J. For the present, the deposition may be read. The-interest of the witness, if any, is balanced between these parties, or cannot be affected by the verdict. .

Verdict for the defendant.

Motion for a new trial — reserved for Court in Bank. [See 5 Ohio, 375.]  