delivered the opinion of the Court. This case was submitted to the jury on several issues which have been found for the defendant; and the plaintiff moves to set aside the verdict, as being against the weight of the evidence, and because some of the defendant’s evidence ought not to have been admitted. It is contended that the verdict is clearly against evidence as to the first issue on the plea of non est factum, but taking into consideration the whole evidence, and all the circumstances of the case, it does not appear to us that the verdict is so clearly against "the weight of the evidence as to authorize the Court to interpose.

There is no question that the bond was executed, indeed the defendant’s signature was admitted, and in ordinary cases the production of a bond by an obligee is prima facie evidence of delivery. But in the present case there was evidence tending to show an alteration in the date of the bond, or an attempt to alter it. It appeared also that the bond was very much blotted and defaced, and was found among the loose papers of the judge of probate after his decease, in 1817, and it does not ¿ppear that before that time it was ever filed in the probate office. These and other circumstances might well lead the jury to doubt the delivery of the bond, and to find for the defendant on this issue.

The next question is whether the evidence on this issue was rightly admitted. The objection is that the magistrate who took the defendant’s depositions was his counsel or attorney, and therefore was incompetent to take them. By the St. 1,797, c. 35, depositions are to be taken “by any justice of the peace, not being of counsel or attorney to either party, or interested in the event of the cause.” “ But no person, for the purposes of this act, shall be considered as the attorney of another, until such attorney shall have indorsed the writ, or indorsed his name on the summons, to be left with the defendant in the cause, or until he shall have appeared for his principal in the cause, before the justice of the peace, referees or arbitrators, or in the court where the said action shall be pending, or shall have given notice, in writing, stating he s attorney in the cause, to the other party or his attorney.” By the testimony of Mr. Burnell, the magistrate who took *445die depositions, it is very clear, we think, that he is not included within any exception in the statute and was duly authorized to take the depositions. Most certainly he was not counsel or attorney, within the true meaning of the statute, and the only question is, whether he was, as the friend of the defendant, under any bias in his favor, so that we must presume the depositions were not taken impartially. And we are of opinion there is no ground for any such presumption. The plaintiff’s agent was present at the taking of the depositions, and the most material one, that of Josiah Hussey, was taken by the plaintiff. This deposition contains all the material facts as to the first issue. The other depositions were used on a former trial without objection, and on the whole, there is no reason for supposing they were not impartially taken.

The deposition of Susan Gelston is not material, as her testimony has no bearing on the first issue ; and if it had, there is no legal objection to her competency. She was the wife of the administrator, and this, it is argued, renders her incompetent; but the cases cited do not support the objection. They only decide that a widow is not allowed to disclose conversations between her and her husband, but not that she is incompetent to testify as to other matters. Whether this Court would feel bound to adopt this rule of evidence or not, is immaterial in this case, as the question is not raised. And it is unnecessary to consider any question raised on the other issues, as the verdict on the first issue is decisive in the defendant’s favor.

Judgment for defendant.