
    Richmond v. Tallmadge, 16 J. R. 309.
    In S. Ct. 10 J. R. 85.
    
      Escape; Voluntary Return; Special Verdict.
    
    In an action for an escape against the sheriff, the jury found that the prisoner had voluntarily returned before suit, but that the sheriff had not verified his plea with an affidavit that the escape was without his knowledge or consent, (as the statute required,) and the Supreme Court held that the defence was not complete without it, and that the sheriff was liable for the escape. But
    The Court of Errors held that the finding of the jury as to the want of an affidavit, might be rejected as surplusage being matter not in issue, and that if a plaintiff go to trial on such a plea, instead of treating it as a nullity, or moving the court to set it aside, or if notice be given of it, moving to strike out the notice, he can not take advantage of it at the trial.
   Judgment of Supreme Court reversed.  