
    Leander Lackey vs. Stephen M. Holbrook & another.
    On the trial of an action of trover against H. & E., the jury disagreed as to H., but found a verdict in favor of E., on which judgment was rendered. Held, on a second trial of H., that E. was a competent witness for him.
    Trover for certain tools and implements of trade, which were alleged to be by. law exempted from attachment, but which were attached by Edwin Eaton, a deputy sheriff, one of the defendants, on a writ against the plaintiff, in favor of Stephen M. Holbrook, the other defendant.
    At the new trial granted by this court, (11 Met. 458,) and had in the court of common pleas, December term 1846, the jury found a verdict declaring the defendant Eaton not guilty, but did not agree as to Holbrook. Judgment was rendered for Eaton, on said verdict.
    At March term of the same court, in 1847, another trial was had before Washburn, J. when said Eaton was offered as a witness for Holbrook. The plaintiff objected to the competency of the witness, because he was a party to the record in the case. But the judge overruled the objection, and the witness was sworn and testified; and a verdict was returned for Holbrook. The plaintiff alleged exceptions to the admission of the witness.
    No argument was had in this case.
   Shaw, C. J.

In tort, where defendants are liable jointly and severally, when one is acquitted, and especially if judgment has been entered on the verdict óf acquittal, he may be examined as a witness for the other defendant, if he is not otherwise incompetent. He is no longer a party to the issue. 1 Greenl. on Ev. § 357. Tait on Ev. 369.

Exceptions overruled.  