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,