The opinion of the Court was delivered by
O’Neall, J.I concur fully in the ruling of the judge below. The defendant had neither the body nor the bail bond of the defendant at the return term of the writ. Cook vs. Irving, 4 Strob. 204. This was an escape: and that it was voluntary, was conclusively shown by the fact, that the prisoner was out of his custody by his assent. When these facts were proved, it was the duty of the judge to tell the jury, as he did, that it was a voluntary escape. If he had left the facts to the jury, and they had found, as for- a negligent escape, we would have set the verdict aside on the motion of the plaintiff, as palpably against the evidence. I therefore conclude, that the defendant can take nothing by his motion; which is dismissed.
Motion dismissed.
Withers, Whither, Glover and MuNRO, JJ., concurred.