The opinion of the Court was drawn up by
Whitman C. J.The only question presented to the Court upon the bill of exceptions, is, whether Gile, offered as a witness by the defendant, was competent or not. The action is trespass vi et armis de bonis asportatis. The article in ■question was a horse. It had been seized on execution by the defendant, he being a deputy sheriff, as the property of one Robert Foord, one Gove being the creditor in the execution, and the witness being his attorney. The witness being sworn in chief, the plaintiff questioned him as to his interest in the *211event of the suit; and he disclosed, that he was directed by the creditor, if he thought it advisable, to cause the horse to be seized on the execution; that he, thereupon, put the execution into the hands of the defendant, and directed him to seize the horse ; and informed him that Gove would indemnify him for so doing. The Court below ruled that this shew him to be interested in the event of the suit, upon the ground, as we are given to understand from the argument of the plaintiff’s counsel, that the witness would be responsible to the defendant, in case he should not prevail in this suit. But we think that no such responsibility rested upon him. By looking at the execution, the defendant must have seen, that the witness was not the creditor named in it; and, when told that Gove, the creditor, would indemnify him, he must have understood, if it were not otherwise known to him, that the witness was performing a mere agency. In such case there could be no liability on the part of the witness to indemnify the defendant.
But it is urged, that the witness was interested in the execution, he having a lien thereon for his costs, and therefore should be holden to indemnify the defendant. This was but a contingent interest, if it can be considered as amounting to any thing of the kind. It was such an interest as the defendant had no concern with. The witness’ remedy for his costs was against the creditor, who was liable for them, whether the execution was collected or not. And besides; it does not appear that the witness’ costs had not been paid by the creditor; and if not, whatever of interest he could, in anj event have had, must have resulted from an inability to obtain payment from the creditor. When an interest, if any, is so remote and contingent, and especially, when it does not appear that an interest ever could be created in the witness, it could not be proper to exclude him. Exceptions sustained.