delivered the opinion of the Court. On a trial of this cause, being trespass for an assault and battery, the defendant offered Stephen Kendall as a witness, who was objected to, and rejected on the ground of interest. It appeared, upon evidence or admissions, that at the commencement of the action, personal property had been attached ; that at the request of the witness, the property had been delivered to him, on his receipt and undertaking to keep and return it, and indemnify the attaching officer, who was a deputy sheriff. The rejection of the witness, and the objection at the trial, went upon the assumption of a fact, which does not distinctly appear in the report, but which was afterwards proved or conceded, namely, that Kendall thus receipted for the attached property, at the request of the debtor, and delivered the property back to him, so that he was liable on his personal obligation to the officer, in case the plaintiff should recover, for the amount of the judgment ; whereas, if the defendant should prevail, the officer would not be liable to him, he having received back his goods, at his own request, and Kendall would be either wholly discharged from all liability on his obligation, or be liable for nominal damages only. He, therefore, stood in the nature of bail for the defendant, and so was interested in favor of the party calling him. And then the question is, whether this interest was discharged by the release of the sheriff, and the Court are of opinion, that it was not. The liability of Kendall to the sheriff, if any, as keeper of the goods, was that for which an action *88of trover on his special property in the goods, would be the appropriate remedy. But the actual lien on the goods had been discharged by a redelivery of them to the debtor, and the witness had become personally responsible by his obligation to the deputy sheriff; and this personal responsibility on his contract, we think, the release of the sheriff did not reach.

This case is distinguishable from the late case of Baker v. Fuller, 21 Pick. 318. In that case, the property had been delivered by the deputy sheriff to the defendant for safe keeping only ; the attachment had not been discharged ; and it was held, that trover would lie by the sheriff, for the benefit of the attaching creditor, in virtue of the special property vested in him by the attachment.

The Court are of opinion that the interest of the witness was not removed by the release of the sheriff, and that the. witness was rightly rejected as incompetent.

Judgment on the verdict, for the plaintiff.