Opinion
Fall Sessions, 1860.
C. M. Cullen, for plaintiff.
W. Saulsbury, for defendants.
ACTION of trespass for assault and battery. On the trial of the case, Zachariah Jones was called as a witness for the defendants and was objected to by the counsel for the plaintiff, on the ground of incompetency, because he was a co-trespasser with the other defendants, and had been joined as a co-defendant with them in the writ, but as to whom it had been returned non est, and who had not appeared an who was therefore not formally a party to the action, by reason of his having evaded and eluded the service of the process, for the purpose of becoming a witness for them.
By the Court: We must admit the witness. Formerly as the law and the decisions stood on this point, he would have been excluded; but it is now settled to the contrary, and has been so recognized by this court. Clark v. Maloney, 3 Harr. 68. Stockton v. Jones et al. 10 Johns, 21. 1 Greenl. Ev. 476.