Asbury C. Pepper v. David Pepper, et al.

Asbury C. Pepper v. David Pepper, et al. In an action of trespass for assault and battery, a co-trespasser joined in the writ, but returned non est, and not a party for that reason to the action, is a competent witness for the 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 and 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. [MAJORITY — By the Court:] 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. C. M. Cullen, for plaintiff. W. Saulsbury, for defendants.'