much more serious offence: for it is generally agreed that such escapes amount to the same kinds of offence, and are punishable in the same degree, as the offence of which the prisoner is guilty, and for which he is in custody, whether treason, felony, or trespass; and this, whether he were actually committed to goal, or only under a bare arrest. But the

officer cannot be thus punished till the original delinquent is actually found guilty, or convicted by verdict, or confession of the crime for which he was so arrested or committed; otherwise it might happen that the officer might be punished for treason or felony, and the person arrested and escaping might turn out to be an innocent man. But before the conviction of the principal party, the officer thus neglecting his duty, may be fined and imprisoned for a misdemeanor.

Or he may be proceeded against under the act of assembly, which is thus:

When any person charged with any crime or misdemeanor whatsoever, shall be legally committed to any sheriff, deputy sheriff, constable, or jailor within this state, and such sheriff, deputy sheriff, constable, or jailor, wilfully or negligently shall suffer such person so charged and committed, to escape out of his or their custody, the sheriff, deputy sheriff, constable, or jailor so offending, being thereof lawfully convicted, shall be removed from office and fined at the discretion of the court before whom the trial may be had; and in all such cases it shall be sufficient in support of the indictment against such sheriff, deputy sheriff, constable, or jailor, to prove that such person so charged was committed to his or their custody, and it shall lie upon the defendant to show that such escape was not by his consent or negligence, but that he had used all legal means to prevent the same, and acted with proper care and diligence. And when a sheriff shall in consequence of a conviction under this act, be removed from office, the justices of the court of pleas and quarter sessions of the county for which such sheriff had been appointed, are hereby authorised upon such conviction and removal, to elect and nominate a freeholder as required by law, to execute the office of sheriff until the next annual election, who shall thereupon be commissioned by the governor or commander in chief as in other cases. Provided, that such removal of a sheriff shall not affect his power or duty as a county treasurer of the public revenue, but he shall proceed on such duty, and be accountable as if such conviction and removal had not been had.

It shall and is hereby declared to be a part of the duty of the attorney or solicitor general, as the case may be, that

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when they shall be informed or have knowledge of any felon, or person otherwise charged with any crime or offence against the state, having escaped out of the custody of any sheriff, deputy sheriff, constable, or jailor, to take the necessary measures to prosecute such sheriff, deputy sheriff, constable, or jailor so offending; and for every such offence, and on all indictments in such cases, he may endorse the governor for the time being as prosecutor.

Wherever a person is lawfully arrested, and afterwards escapes, the doors of a house may be broken open to take him, on refusal of admittance-2 Haw. 87.

No person should suffer capitally for the crime of another; therefore the principal jailor is punishable by fine only, for the voluntary escape suffered by his deputy.-2 Haw. 135.

ESTRAYS-See Strays.

EVIDENCE,

IN GENERAL

1st. The party who makes an affirmative allegation which is denied by his adversary, is in general required to prove it. For the negative not admitting in its nature of direct proof, the party who denies a fact, is not called upon to give that evidence which can only be circumstantial, till some evidence has been given to prove the fact alleged. But in cases where a man is charged with not doing an act, which by law he is liable to do, a different rule prevails; for the law presumes that every man does his duty to society, until the contrary is proved. Bull. N. P. 298. ~

2d. The evidence must be applied to the particular fact in dispute.

3d. The best evidence which the nature of the case will admit of, must be produced. Thus no parol testimony can be received of the contents of a contract in writing, which is in existence and in the custody of the party. The subscribing witness to a deed, if he be living in the state, is alone competent to prove its execution; but if he be dead, or out of the state, or not to be found, (and therefore presumed to be dead or out of the state) or become executor, administrator, heir, or legatee (but not if become assignee), or become blind or mad, then his handwriting may be proved, as being the next best evidence. And if the handwriting of such subscribing

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witness cannot be proved, then proof of the handwriting of the obligor may be admitted.

4th. The law never gives credit to the bare assertion of any one, however high his rank or pure his morals; but always requires the sanction of an oath. The few instances in which hearsay evidence can be admitted, are such as are in their" very nature incapable of positive and direct proof.. Of this kind are all those which can only depend on reputation. The excluding of hearsay evidence in questions of pedigree, would generally prevent all testimony whatsoever.

There is no other way of knowing the evidence of deceased persons, but by the relation of others, of what they have been heard to say.-3 T. R. 707. Peake's L. E. 172.

5th. What a party admits, or which another asserts in his presence and he does not contradict, is received as evidence against him; but not what is said by his wife, or any other member of his family in his absence.-Peake's Ev. 11.

But a distinction must be made between an admission and an offer of compromise, after a dispute has arisen. An offer to pay a sum of money in order to get rid of an action is not received as evidence of a debt; but admissions of particular articles of an account are good evidence-Bul. N P. 236.

6th. The confession of a felon, voluntarily made, is evidence against him on his trial. Not so if threats or promises have been made to induce him to confess. Yet, if in consequence of the confession so obtained, stolen property is found, evidence of that fact may be admitted-Leach. Cro. L. 299.

7th. Where positive and direct evidence is not to be looked for, the proof of circumstances and facts consistent with the claim of one party, and inconsistent with that of the other, is deemed sufficient to presume the particular fact which is the subject of controversy. Long and indisputed possession of any right or property, affords a presumption that it had a legal foundation; and rather than disturb mens' possessions, even records have been presumed. But all such cases as rest on presumption, and not on positive proof, very slight evidence is sufficient to rebut and overturn, and to call on the different parties to establish their respective rights by the ordinary rules of evidence. Peake's Ev. 13.

8th. Presumptions are of three sorts; violent, probable, and light or timerary. Violent presumption often amounts to full 'proof: as if one be run through the body with a sword in a house, whereof he instantly dieth, and a man is seen to come out of that house, with a bloody sword, and no other man was

at that time in the house. Probable presumption moveth lit tle; but light or timerary, moveth not at all.

WRITTEN EVIDENCE.

This class of evidence, where the subject is treated of at large and embodied into a system, is usually divided and subdivided into appropriate and technical parts for the sake of order and perspicuity. But to follow that course on this occasion, would lead me far beyond the necessary limits of the present work. Therefore, nothing more will be here attempted than a general outline and a few familiar rules.

Acts of the assembly and judgments of our courts are denominated Records, and are so respected by the law, that no evidence whatever can be received in contradiction of them; but being the precedents of the law to which every man has a right to have recourse, they are not permitted to be removed from place to place to serve a private purpose, and are therefore proved by copies of them, which, in the absence of the original, is the next best evidence. But a copy of a copy will not do.

Courts are bound to take notice of general acts of assembly, (such as relate to the public in general) without being pointed out;-not so private acts which only concern private persons.

A verdict of a jury in a civil cause is no evidence whateyer as against third persons, except where a man merely uses the name of another for his own benefit. And verdicts are no evidence until final judgment is entered upon them.

But the representative of a party, such as his executor, administrator, heir, or assigns, is not considered as a third person within this rule; for such a representative is permitted to give the verdict in evidence..

All exemplifications of record from the courts of this state must be regularly certified by the respective clerks before they can be received as evidence; and if they come from another state, the act of congress on this subject provides, that if they! be attested by the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form, they shall be received as evidence. Or they may still be proved by the testimonial of the governor and the great seal of the state from whence they are brought.

A justice of the peace may take for evidence, depositions taken to be used in any cause in court between the same par

ties, if due notice were given to the adverse party of the time and place of taking; and if the order for taking the same were made by the court or some judge or justice thereof, to take the deposition to be read absolutely; or if de bene esse or conditionally, and the above requisites appear, and also that the witness is since dead, or sick and unable to attend, or has been sought and cannot be found.-See Depositions ante.

But a deposition cannot be given in evidence against any person who was not party to the suit; because he had not liberty to cross-examine the witness. Yet this rule admits of some exceptions; as particularly, in all cases where hearsay and reputation are evidence. So a deposition taken in a cause between other parties, will be admitted to be read, to contradict what the same witness swears at a trial.

In the case of private deeds, or other instruments, the production of the original if in existence, and in the power of the party using it, is always required; till which done, no evidence whatever of the contents can be received; but where the original has been destroyed, or lost by accident; or, being in the hands of the adverse party, notice has been given him to produce it, then an examined copy, or even parole evidence of the contents, being the best evidence in the power of the party, is received; it being first proved, in case a copy is offered, that the original of which it purports to be a copy, was a genuine instrument.-10 Co. 92. 37 R. 151. 1 Str. 526, 70. 1 Atk. 446.

A note of hand not under seal, may be proved by proving the handwriting of the maker; but if the subscribing witness is to be had, he ought to be produced. Indorsements ought to be proved though the indorser acknowledged the endorsement, if the suit be against the maker of the note or bond.

The book of a merchant or trader is no good evidence of itself for him; but is good evidence to prove a debt against him.

The merchant or trader, in order to make his book evidence for him, must prove the actual delivery of the goods in the account; or he must prove that such a one was his clerk, and that he is now dead, and that the entries are in his handwriting. It will not be sufficient to prove that the clerk has gone to another state or country.

Where there is a book account for goods sold, or work and labour done, and the creditor will swear that it is a book account, and that he has no way to prove it but by his own oath; and also that the book contains a true account of all the dealings, or the last settlement of accounts between them, and that