Richmond v. Tallmadge

The Chancellor. The only question in this case is, whether the plea by Richmond, the sheriff, of a voluntary return of the prisoner within the gaol liberties, before suit brought, was a good defence to the action. The plea was the general issue, accompanied with notice [312] of that special matter, and the objection is, that the plea was unaccompanied with an affidavit required by the statute. The language of the statute is, that “ no special plea of retaking on fresh pursuit, or plea of the general issue with notice of such special matter, shall be received or allowed, unless oath be made in writing by the sheriff, &c. and filed with the plea, that the prisoner made such escape without his privity, consent, or knowledge.” The special verdict finds the escape and the voluntary return before suit, and adds, “ that the defendant had not accompanied his plea with an affidavit that the escape was without his knowledge or consent, nor filed any such affidavit.” How the jury came to find such a fact, and make it parcel of the special verdict, does not appear. The matter of fact set up as a defence, viz. the voluntary return before suit, is also in the verdict, and must have been founded on evidence offered to the jury at the trial. If that evidence had been inadmissible, why was it not objected to at the trial, and if admitted, why was not an exception tendered to the judge ? No such objection, or bill of exceptions, appears; and the necessary conclusion from the spe- . cial verdict is, that the testimony was received by consent, or by the direction of the Court, and that direction acquiesced in. We cannot travel out of the record to learn the truth of the case. We must take all our knowledge of the facts from the special verdict: And from the record we can deduce no other conclusion, than that the matter of defence contained in the notice answered to the plea, was received and proved at the trial, though the plea had not the requisite affidavit. I have no doubt it was competent for the plaintiffs to waive the affidavit, and to receive and treat the plea as valid without it. We must intend that they have done so in this case. By analogy to the case of dilatory pleas, which equally require, by statute, an affidavit to accompany them, the plaintiff may treat the plea without the affidavit as a nullity, and proceed to his judgment; or, he may move the Court at bar to set it aside. (Tidd,s Pr. in the K. B. vol. 1. 588.) The latter is the more modern course. But if he does nei [313] ther, and treats the plea as good in point of form, the Court will certainly not interfere, and press the defect upon him. January Uifc*' The fact found by the jury, that the plea had no such affidavit, was a finding not -within the issue before them. The jury had nothing to do with the question touching the legal requisites of the plea. That was a matter exclusively for the Court. If the jury find more than is contained in the issue, that excess is to be rejected as surplusage. The case is then reduced to this point, whether to an action of escape, a plea of a voluntary return by the prisoner within the liberties, before suit brought, and that plea certified by the jury to be true in point of fact, be not a valid defence ? Under the decisions of this Court, there can be no doubt of the validity of such a defence ; and I am, therefore, of opinion, that the judgment of the Supreme Court ought to be reversed. This being the opinion of a majority of the Court, (Allen and Seymour, senators, dissenting,) it was, thereupon, ordered and adjudged, that the judgment of the Supreme Courb be reversed ; and that the plaintiff in error be restored to all things which he has lost thereby: And it is further ordered and adjudged, that the defendants in error pay to the plaintiff in error one hundred and seventy-eight dollars and forty-two cents, for his costs and charges, by him laid out and expended in his defence in the Supreme Court, &c., as well as in and about prosecuting his writ of error, in this Court, and that the record be-remitted, &c. Judgment of reversal!