*203The opinion of the court was delivered by

— Bolard, the plaintiff, was the owner of a saw mill; and while so, contracted to furnish Doughty, the defendant, sawed lumber for a house, and received part payment, and delivered a portion of the lumber. He then leased his mill, and assigned the logs on hand to one Gr. W. Watson, as collateral security, to indemnify him, Watson, against loss by reason of being bail for him. In case Watson was saved harmless and relieved from liability, then Bolard was- to pay him by the thousand, for what lumber he may have sawed. Under this arrangement, Watson took possession of the mill, and while so possessed, sawed and delivered to Doughty the lumber which plaintiff had agreed to furnish him. After this, Watson re-assigned the mill and the logs to plaintiff, and received pay by the thousand, part of which he had received, from time to time, previously to the re-assignment. On the trial below, Watson was offered as a witness by plaintiff, to prove the delivery of the lumber made by him to the defendant. The court rejected him as incompetent. During the whole time he was in occupancy of the mill, it was as agent and pawnee of the mill and logs for Bolard, and this was to be his condition, dependent on the contingency of his liability as bail. The contingency which was to change his relation never occurred.

He restored the property and possession, as any one would do with .property which had been pledged and redeemed. His relation as an agent and servant existed throughout; the contingency, making him a tenant and the owner of the logs, never having arisen. At the time of testifying, he had no interest whatever in the lumber, and never had; and this is one criterion of competency, — the main one, — as was decided in Roshing v. Chandler, 3 Barr, 375; Carter v. Trueman, 7 Id. 315; for the pledge had been redeemed; at least the pledgee treated it so, and the property without more, would have reverted to the plaintiff. The re-assignment did not help his title in the least, it was one way of doing the business; but the rights of the parties will not be changed on account of the form adopted merely. Watson stood in no other light than any other hired man, operating for his employer, and was undoubtedly a competent witness. As to the suggestion, that as an employee, to be paid by the thousand for sawing, it was his interest to increase the amount of lumber he cut, by his own testimony, and that he was therefore interested, we see nothing whatever in this objection. The verdict and judgment in the case, could never be evidence for him.

We think the court erred in rejecting the witness, and the judgment must therefore be reversed.

Judgment reversed, and venire facias de novo awarded.