
    Hayden and others, Judges of Oneida C. P. vs. Palmer, impleaded with Eli Savage, survivors of John Savage, deceased.
    In an action upon a bond given for the jail limits, the plea was, that the prisoner having been discharged as an insolvent, presented his discharge to the sheriff who thereupon liberated him, &c,; held, that the matters alleged in the plea, were sufficient to bar the action.
    Where a bill of exceptions was taken on the part of the plaintiff to the judge’s charge in respect to a notice of special matter, and it appeared that the jury had properly found a verdict for the defendant under a good plea in bar; held, that though the charge was erroneous, the plaintiff was not entitled to a new trial.
    
      Semble, that in determining the question whether a new trial should be granted upon a bill of exceptions, the court will look into the whole record so far as to ascertain how the matter would stand in the event of a removal of the cause into the court for the' correction of errors.
    If evidence is erroneously received against a party, to which he excepts, and afterwards insists upon and proves the same facts himself, this is deemed a waiver of the exception, and he cannot avail himself of it on a motion for a new trial.
    Where a bill of exceptions shows that it must eventually .avail nothing to the party taking it, or where the record shows this conclusively, which is the same thing in effect, a new trial will be refused, though there was error.
    An erroneous opinion of a judge upon a point of law having no possible connection with the case, cannot be made available by way of exception, or as the foundation of a writ of error.
    Debt on a limit bond, tried at the Oneida circuit, in October, 1840, before Gridley, C. Judge.
    Eli Savage had been taken in execution at the suit of the plaintiffs, upon a judgment for costs on the denial by this court of a motion for a mandamus. He, together with Palmer and John Savage as sureties, executed the bond on which this suit was brought, which was dated on the 24th of March, 1838, payable to the sheriff of Oneida, and by him duly assigned to the plaintiffs. The declaration was in the usual form, assigning as a breach of the condition of the bond, the escape of the prisoner from the jail liberties. Several pleas were interposed by Palmer, he being the only defendant who appeared and on whom process was served. The seventh plea set forth an insolvent discharge of Eli Savage, and averred that, before the alleged escape, it was presented to the sheriff, and the prisoner discharged by him. A notice was subjoined, that the said defendant would give in evidence and insist on the trial that the alleged escape was voluntary. Replication to the seventh plea, that the discharge was not presented, nor the prisoner discharged as alleged in said plea.
    On the trial, after the plaintiffs had established the issue on their part, the defendant’s counsel introduced in evidence the insolvent discharge set forth in the seventh plea, and then called John Savage, a son of the prisoner, who testified that he presented the discharge to the sheriff, who, after examining it, said, “ I have nothing further to do with, your father, and suppose he is at liberty to go home,” and that soon after his father left the limits. The plaintiffs then called Lyman Curtiss, the said sheriff, who testified that he had no recollection of ever having seen the discharge or been called upon by John Savage the witness. That he did not know John Savage, and had no knowledge or recollection of the transaction sworn to by him. -No further testimony was given material to the issue.
    The plaintiffs’ counsel insisted, that the replication to the seventh plea having taken issue on two points, by denying 1. The presentment of the insolvent discharge; and 2. The liberation of the prisoner by the sheriff—and not having been demurred to for duplicity—the jury were bound to pass upon each point distinctly. The defendant’s counsel contended that the issue was entire, and that if the jury believed the testimony of John Savage, the defendant was entitled to a verdict under the notice.
    The judge charged the jury that the issue on the seventh plea could not be divided, but must be found as an entire issue; that if the substance of it was proved, the jury should find it all proved, and if they believed from the evidence that the insolvent discharge was presented, and that the sheriff said, “I have nothing in particular to do with Savage, but suppose he has liberty to go home,” or words to that effect, the substance of the issue upon this point was proved. To this part of the charge the plaintiffs’ counsel excepted. The judge further charged, that the insolvent discharge authorized the sheriff to permit the prisoner to depart from the jail limits. To this the plaintiffs’ counsel also excepted. The judge likewise charged, that if, on the insolvent discharge being presented to the sheriff, he assented to the prisoner’s leaving the limits, by saying, as testified to by John Savage, “that he had nothing to do with him, but supposed he had liberty to go home,” they would be justified in finding a verdict for'the defendant under the notice. To this part of the charge the plaintiffs’ counsel also excepted.
    The jury found for the defendant on the issue upon the seventh plea, and, under the notice, found a special verdict stating, “ that on the presentment of the insolvent discharge to the sheriff, he assented to the departure of the prisoner, who thereupon went from the limits.”
    The defendant’s counsel now moved for judgment on the special verdict. The plaintiffs’ counsel opposed the motion on a bill of exceptions, insisting that the special verdict resulted from the erroneous charge of the judge, who misapprehended the character of the pleadings and notice. He also moved for a new trial on the bill of exceptions.
    
      H. P. Hastings, for the plaintiffs.
    
      W. cj- C. Tracy, for the defendant.
   By the Court,

Cowen, J.

The merits of the case were most •clearly with the defendant on the issue upon the seventh plea, the substance of which was fully proved and the charge of the judge correct; nay, more favorable for the plaintiffs than they could legally ask.

But still, I think that the judge’s remark was too strong on the evidence as applicable to the notice, which set up a naked voluntary escape irrespective of any insolvent discharge. The reply of the sheriff to John Savage was not sufficient to warrant the jury in finding- a voluntary escape. As the question comes up on bill of exceptions, there must be a new trial on this ground, unless the case forms an exception to the general rule. Non constat, but the jury may have acted upon this view in finding as they have under the notice. I think they did.

Yet we think a serious question arises, whether a court of error ought to reverse our judgment, should we, upon this bill, refuse a new trial. Had the exception stood alone on the error in respect to the notice, perhaps it ought; but the bill presents a case upon the whole of which it is impossible for the plaintiffs to recover. It shows that under one plea, (the 7th,) the plaintiffs are barred of their action; but insists they are not so under the notice. It admits that a judgment for the plaintiffs would be wrong, though the verdict should be for the defendants under the notice. Upon such a state of things, a new trial must be entirely useless. This can be seen as well by the court of errors as by us; for the whole bill of exceptions must go there. The case is not such an one as might arise were there two several bills of exceptions, the one in respect to the plea unavailable, and that in respect to the notice well founded. Had the bills been thus separate, as it is the practice to make them in some of the states, the plaintiffs might Avaive the one in respect to the plea, and go into the court of errors on the Avell founded bill. In such case, it might be proper for us to notice such a consequence, and order a neAv trial; though even then, the verdict on the plea would, perhaps, appear to be wholly unimpeached—for I do not see how the court of errors could be brought to suppose that the error in respect to the notice had any influence on the verdict under the plea. However that might be, it is quite clear on the case before us; for the bill shows expressly that the verdict on the plea proceeded independently of the evidence applicable to the notice; and that, too, upon sufficient evidence to sustain the plea.

The short of the case is, there was an error; but such an one as, on the plaintiffs’ own showing, could not possibly work the least injury. It is then in principle like the case of a judge erroneously receiving evidence to a fact against the party; to Avhich he excepts, but afterwards insists upon and proves the same fact himself. That has been often allowed to defeat the effect of the exception. I believe it has generally been called a waiver of the exception ; but where the very party who takes it, shows that it must eventually avail nothing, or where the record shows- this conclusively, the case comes to the same thing. To warrant' a writ of error upon a bill of exceptions, we think there must-appear to be some possibility of injury arising out of the matter excepted to. An error in the mere abstract, for instance, as if the judge should err upon a point of law having no possible connection with the case, has been held so entirely innocent as not to form the subject of a writ of error. Cases which would justify a court of error in disregarding objection's on this principle, are collected in Cowen Hill's Notes to 1 Phil. Ev. p: 787, 8. And I think they afford a clear warrant for refusing a new trial in the case at bar.

The motion made in behalf of the defendant for a judgment on the special verdict is granted.

Ordered accordingly.  