By the Court,
Sutherland, J.The principal question upon the merits in this case was fully considered and diposed of by this court, when the cause was before it on a former occasion, 1 Wendell, 398. It was then held that the plaintiff, by commencing an action against the sheriff in October, 1823, for an alleged voluntary escape of Hopkins, thq defendant in the execution, had elected to consider him out of custody; and that from the commencement of that suit, Hopkins ceased to be, in judgment of law, in the custody of the sheriff, and had a right to depart from the jail liberties with impunity ; that of course there could be no subsequent escape until he was again charged in execution; that this action, therefore, having been commenced in June, 1.824, for an alleged escape in the preceding winter, without any new execution or arrest, could not be maintained. This defence was overruled at the circuit, and a new trial was ordered upon that ground. That question is again raised only proforma for the purpose of enabling the plaintiff to review the decision of this court upon It in the court for the correction of errors, if he shall think it expedient. The reasons of the court upon this point will be found in the report of the decision upon the motion for a new trial.
Independently of the objection to the main principle of the, defence, several minor exceptions were taken at the trial, which will now be noticed.
1. It was contended that the defence was not admissible under the general issue of nil debet, without special notice. The general rule upon this subject is, that any matter may be given in evidence under the general issue, which shews, that the plaintiff never had any cause of action, or had none at the time of the commencement of the suit. 1 Chitty’s PL 472. Nil debet is the general issue in debt for an escape, and its language, as Mr. Chitty observes, 1 Chitty’s PL 476, puts in issue the existence of the debt at the time of bringing the actionj *457and consequently any matter may be given in evidence under this plea, which shews that nothing was due at that time as performance, or a release, or other matter in discharge of the action. Comyn’s Dig. Pleader, 2 w. 16. 2 Salk. 565. 1 Saund. 83. 1 Ld. Raym. 566. 12 Mod. 376. Lawes on PI. 519, ch. 16. The evidence given showed that Hopkins was not a lawful prisoner in the custody of the defendant when the alleged escape took place; it of course went to the very foundation of the action, and was properly admitted under the general issue.
2. The notice given to the attorney for the plaintiff in this cause, to produce the assignment of the judgment from the plaintiff Brown to Ephraim Towner, was sufficient (it not having been produced) to authorise parol evidence of its contents to be given. The objection was that the notice should have been served on Towner himself; but it was satisfactorily shown that Towner was the real party in interest, and directed all the proceedings in the cause. The attorney on record is to be considered his attorney, and notice to him to produce the assignment was good.
3. The commencement of the former suit was sufficiently proved. An exemplified copy of the capias was produced, and a copy of the declaration served on the defendant’s attorney. It was objected that an exemplified copy of the declaration as filed, and not merely the copy as served, should have been offered in evidence. It is a sufficient answer to say, that it did not appear that any declaration had ever been filed, and the service of a copy on the defendant was valid and effectual, though no copy had in fact been filed. 6 Johns. R. 286. If it were necessary, however, an exemplified copy might now be produced.
None of the exceptions are well taken, and the motion for a new trial is accordingly denied.