Green v. Pickering

Gilchrist, C. J. The action is brought to recover the amount of the plaintiff’s bill for labor and materials furnished in repairing the schooner Linda. For this he has a lien on the vessel for the space of four days, and the lien may be secured by attachment. Comp. Laws ch. 139, §§ 1, 2. The owner of the vessel, consequently, must hold it subject to this lien, and cannot have the control of it until the lien is discharged. There is a cloud upon his title which would hinder his conveying the vessel, and would detract from the value of the property in the market. Peirce owned the schooner, and was offered as a witness by the defendant. He has an interest to defeat this suit, for if that is done, the lien is removed from the vessel. Otherwise she may be sold to pay the plaintiff’s bill. The'law considers a witness as being interested, “ if there be a certain benefit or disadvantage to him attending the [368] consequences of the cause one way.” Gilb. Ev. 106, 107. And this benefit- “ may arise to the witness in two cases; first, where he has a direct and immediate benefit from the event of the suit itself, and secondly, where he may avail himself of the benefit of the verdict in support of his claim in a future action.” Tindal, C. J., in Doe v. Tyler, 6 Bing. 394; Bent v. Baker, 3 Term, 27; Smith v. Praget, 7 Term, 62; Rex v. Boston, 4 East, 581; Latham v. Kenniston, 13 N. H. Rep. 206. Peirce would derive a certain benefit from defeating the plaintiff’s suit, which would be the removal of the lien from his property. He comes within the rule above stated, and is incompetent. What would be the effect of his testimony if he were competent, it is unnecessary to inquire. The report, as it now stands, is not in a proper condition to go to the jury, as it contains statements of facts, and the duty of the auditor is only to state the accounts. If the report contain other matters, it is not competent evidence for the jury, and should be recommitted, with instructions to strike out the extraneous matter. Bartlett v. Trefethen, 14 N. H. Rep. 427. Plaintiff’s motion to recommit granted.