Majority
p. 601Gould and Banks against Bruce, sheriff, &c. ALBANY, Feb. 1827.
Headnote
Cross motions. The defendant moved for judgment as in case of nonsuit; and the plaintiffs, to strike out the notice given by the defendant with his plea. The cause be-rAplea ot no-^^etmn^be-for® sud>in an action of escape against a sheriff', is within the statute, (1 R. L. 426, s. 23,) and must he supported by the, defendant’s affidavit that the escape was without his consent, privity, &c.
p. 602
ing at issue, was noticed, but not tried, at the lastNiaga-ra circuit. It was an action of debt for the escape of one Chapin from the custody of the defendant, as sheriff, on a ca• sa• Plea) ⅛0 general issue, and notice of voluntary return before suit. This notice was not accompanied with an affidavit. The plaintiff noticed the cause for trial without discovering that the omission was material ; and offered that as the excuse for not trying ; deeming it necessary to move to strike out the notice.
A. Samson, for the plaintiffs,
cited 1 R. L. 426; 16 John. 312 .
T. H. Chapin, contra.
The statute (1 R. L. 426, sec. 23,) is, that a plea or notice of retaking on fresh suit, shall not be received, unless the defendant make and file an affidavit that the escape was without his knowledge, privity, &c. It is denied that these words extend to the plea or notice of a voluntary return.
We think the latter is within the equity of the statute, which is remedial; and intended to prevent the officer’s connivance at escapes.
We therefore deny the motion, for judgment as in case of nonsuit, on payment of costs. We grant the motion to strike out the notice ; the defendant to be at liberty to retain it, however, on filing the proper affidavit, and paying costs.
Rule accordingly,