Pepper v. Pepper

Headnote

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.