¶1ACTION 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.
¶2By 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.