favour shown to the deft., or if the place where he was kept were dangerous or insecure:" per Mansfield, C. J., Houlditch v. Birch, 4 Taunt. 610; Hard. 31. If the sheriff, before a return of a ca. sa., liberate the prisoner upon his paying the money endorsed on the writ to the sheriff, it will be an escape, the writ directing the sheriff to take and keep the body of the prisoner, so that he may have it at the return of the writ, to satisfy the plt. of his damages, costs, and charges. Slackford v. Austin, 14 East, 468; recognized by Abbott, C. J., Crozer v. Pelling, 4 B. & C. 31. If an escape be voluntary, it must appear to be with the consent, or by the default of the marshal; but his allowing the rules of the prison is no default in him, because the law has given a sanction to it, per Buller, J., Bonafous v. Walker, 3 T. R. 131. Evidence, however, of a negligent escape will satisfy a court for a voluntary one: . ib. Where a new sheriff is appointed, his predecessor ought to deliver over all the prisoners in his custody charged with their respective executions; and, if he omit any, it is an escape. But, if a sheriff die, the new one must, at his peril, take notice of all persons in custody, and of the several executions with which they are charged: B. N. P. 68. And so, where there are sheriffs defts., and one die, the action will remain against the survivor, the tort being joint and several: Bennison v. Sheriffs of York, Cro. E. 625. By 8 & 9 W. 3, c. 27, s. 8, if the marshal or warden, or their deputies, or the keeper of any prison, after one day's notice in writing, given for the purpose, shall refuse to show a prisoner committed in execution to the creditor, or his attorney, such refusal shall be adjudged an escape: B. N. P. 68. If there be a judgment against two persons in execution, and one escape, the sheriff will be liable for the whole debt, Roll. Ab. Escape, F. 4; and so, where husband and wife are in custody, and the wife escape: ib. 5; Whiting v. Reynell, Cro. J., 657; Sukliffe v. Reynell, 2 Bulst. 320. If there be an escape, an action may be maintained, though the judgment on which it was founded be erroneous, Gold v. Strode, Carth. 148, 3 Mod. 324; but there will be no escape if the sheriff permit the prisoner to go out of his custody on the judgment being reversed: Wats. 139. Damages.] The deft., in an action of debt for an escape, is liable for the whole debt and costs in the original action; the jury cannot give less: 1 Saund. 35, n. 1; 2 T. R. 129; 2 Chit. Rep. 454. The deft. has no means of re-imbursing himself if the escape were voluntary: Watson, 149. * Evidence for Defendant. [*489] The sheriff may prove the escape to have been effected by the act of God, or the king's enemies: 4 Co. 84; B. N. P. 66. To support a special plea, deft. may show that the party escaped against his will, and that, after fresh pursuit, he was retaken before the commencement of the action, Bonafous v. Walker, 2 T. R. 126, 8 and 9 W. 3, c. 27; or that the party returned into custody previous to the action being commenced; though, in these cases, it must appear that he was in the custody of the sheriff when the action was commenced: Stark. Ev. 1349. The sheriff may show that the judgment was void, as being coram non judice: B. N. P. 65; Carth. 148. ESCROW. UNDER the plea of non est factum, deft. may show that the deed was delivered as an escrow, upon a condition not yet performed: B. N. P. 172; Stoytes v. Pearson, 4 Esp. Rep. 255. As to the form of a plea of delivering of a bond as an escrow, it sometimes commences with the allegation, actio non; but, as the validity of the deed is disputed, onerari non appears more correct: Rust. Ent. 181 b, 182 a. It is said that, as this plea, in effect, denies the allegation that the deft. made his deed, the plea should conclude to the country: 1 Salk. 274; see precedent, 3 Chit. Pl. 962. When it was intended that the delivery should be conditional, and that the deed should not operate as an effective deed from the moment of delivery, but remain as an escrow, evidence must be given to show that such intention was clearly expressed at the time of execution, Vin. Ab. Fait M. Co. Lit. 36. It is not, however, essential that any express words should, to that effect, be used at the time; but it is a question for the jury, and they must draw their conclusion from all the circumstances: Murray v. Earl of Stair, 2 B. & C. 88; 3 D. & R. 273. Where, previous to the entering into a composition-deed, it was agreed with the surety, that, unless all the creditors signed, it should be void, the surety, however, afterwards executed the deed, and delivered it to one of the creditors to be executed by the rest, it was held, this was a delivery of the deed as an escrow, and that, all the creditors not having signed, the surety was not bound: Johnson v. Baker, 4 B. & A. 440. ESTOPPEL. See "DEED," "ADMISSIONS." EVIDENCE. The Affirmative of the Issue must be proved, 489. Demurrer, to, 495. As to "Hearsay Evidence," "Parol Evidence," "Evidence by Admissions," by "Public Documents," &c., see the respective titles throughout the work. The Affirmative of the Issue must be proved.] When the issue is joined in a cause, the affirmative averments it contains must generally be proved by the party making them; and the plt. and deft. are [*490] equally bound to prove such averments in their respective pleadings, provided they are material, or that they affect the grounds of the action or defence: post. Thus, if the plt. declares that the deft. is indebted to him on his promissory note, and the general is sue is pleaded, the plt. must prove the affirmative of the issue, by giving evidence of the deft.'s signature to the note, as that proves his averment, "that the deft. did undertake to pay," &c. And, when the issue is joined on the whole declaration, as in cases where the deft. pleads the general issue, all the affirmative averments in the declaration must be proved in their order. In an action for a loss by barratry of the master, the plt. need not prove that the master was not the owner: Ross v. Hunter, 4 T. R. 33, 38. And, in an action on an agreement to pay the plaintiff £100, in consideration of his not consigning any herrings to the London market, and in particular to the house of Messrs. M., it was held sufficient to prove that the plt. had not consigned any to that house, as it was for the deft. to show that herrings had been consigned to the London market: Calder v. Butherford, 3 B. & B. 302; 7 Moo. 158. The above rule admits, however, of some exceptions; as, where the deft. pleads a wrongful act of the plt. in justification, the plt. must negative that act, and prove his whole case, before any evidence is offered in defence: Rees v. Smith, 2 Stark. 31. And, on a charge of nonfeasance or breach of duty, where the gist of the cause of action stated in the declaration is a negative, plt. must prove it, if the deft. put it in issue by his plea, as no person is presumed to have acted illegally; therefore, the omission of a duty must be proved, and though it involve a negative. In a suit for tithes in the Spiritual Court, the deft. pleaded that the plt. had not read the thirty-nine articles; and, being called upon to prove that negative, deft. moved for a prohibition, and was refused: Monke v. Butler, 1 Roll. Rep. 83; 3 East, 199; Rex v. Mawkins, 10 ib. 216. In an action upon 29 G. 3, c. 26, for selling goods by auction in a place where the deft. was not a householder, some proof of the negative must be given by the plt. So, likewise, upon a breach of covenant, that the deft. did not leave the premises well repaired, this breach, though involving a negative, must be proved: 1 Phil. Ev. 186. Where the plt. declared against the deft., who had chartered his ship for having put on board a dangerous commodity (by reason of which a loss happened), without due notice to the captain, or any other person employed in the navigation, it was held that the plt. was bound to prove this negative, namely, the want of notice: Williams v. E. I. Comp. 3 East, 192. So, where the gist of a plea (not consisting of a traverse) is negatived, as the plea, ne unques executor, &c.: Gilb. Ev. 145. Where the law presumes the affirmative, a presumption of law must be disproved; as, if a bond be outstanding for twenty years, the law presumes it paid. If payment, therefore, be pleaded to an action upon such a bond, the plt. will have to negative that presumption: 1 Phil. Ev. 187. Where a servant is in the habit of receiving money for, and paying it over to, his master, without vouchers, the presumption is, that he pays over all he receives; and, in an action against him for money had and received, the master must not only prove that he received the money, but also that he has not accounted for it: Evans v. Birch, 3 Camp. 10. The legitimacy of a child born in lawful wedlock being presumed, the party who denies it must disprove it: Banbury Peerage case, 2 S. N. P. 709. After the period of gestation, subsequently to a divorce a mensa et thoro, the presumption is against the legitimacy, and access must be shown: 1 Salk. 123. The party asserting the death of any If a particular fact lie more particularly within the cognizance of one party, that party must prove it, though a negative: Rex v. Durdett, 4 B. & A. 140; 5 M. & S. 211. If deft., under his set-off, give in evidence promissory notes, dated before the bankruptcy, he must also show they were obtained by him before: Dickson v. Evans, 6 T. R. 57. In an action on the game laws, though the plt. must aver that the deft. was not duly qualified, it will be for the deft. to prove that he was: Spieres v. Parker, 1 T. R. 144; Jelfs v. Ballard, i B. & P. 468; 2 B. & P. 307; 1 East, 650; Rex v. Jenner, 5 M. & S. 206. In an action for practising as an apothecary, without a certificate according to 55 G. 3, c. 194, the proof of the certificate lies on the deft.: Apoth. Comp. v. Bentley, 1 R. & M. 159; ante, 89. Where the deft. pleaded infancy, and the plt. replied a subsequent promise after full age, mere proof of a promise was held sufficient on the part of the plt., and that it lay on the deft. to show the incapacity, as being peculiarly within his own knowledge: Borthwick v. Caruthers, 1 T. R. 648. THE SUBSTANCE ONLY OF THE ISSUE NEED BE PROVED. It is a general rule of evidence, that, if the substance of the issue, or the material facts contested by the pleadings, be established, it is sufficient; and that no proof is necessary as to such averment or parts of the issue as do not affect the grounds of the action or defence. Thus the averment of a particular day in the declaration need not be proved, except in the action of ejectment, on penal statutes, or where it makes part of the contract on which the action is brought, as in suits on bonds, bills of exchange, or the like, and forms part of the contract itself. And, on the same principle, it is immaterial, in transitory actions, to prove the place stated in the pleadings, as no locality can be attached to such a contract. But, if the action be local, as where the land is concerned, proof must be given; therefore, in trespass, quare clausum fregit, or in ejectment, the description of the premises must be proved to be in the place stated, and a wrong county or parish is fatal: ante, 451. And the same rule holds as to the proof of any specific number or quantity alleged in the pleadings; thus, in waste for cutting down twenty trees, proof of any smaller number cut down is sufficient: Co. Lit. 282, a.; Hob. 53. On a count for a voluntary escape, the plt. may prove an escape through negligence: Bonafous v. Walker, 2 T. R. 126. And, on a count for a total loss, proof of a partial loss is sufficient: Gardiner v. Croasdale, 2 Burr. 904. In assumpsit on debt on a similar contract, the plt. may prove and recover less than the sum demanded in the writ: M'Quillin v. Cox, 1 H. Bl. 249. In slander, it is now allowed to be sufficient, if the plt. prove some material part of the words laid; and, if his count contain several additional words, he is entitled to a verdict on proving some of them: Compagnon v. Martin, 2 W. Bl. Rep. 790. To a plea of tender, if the plt. reply a subsequent demand of the sum tendered, he must prove a demand of that exact sum, and demand of a larger sum does not support the issue: Rivers v. Griffiths, 4 B. & A. 630; Spyley v. Hyde, 1 Camp. 181. If a plea in trespass aver two matters, either of which is a good justification, though both be put in issue by the replication, proof of one is sufficient: Spilsbury v. *Miclethwaite, I Saund. [*492] 146. When the declaration, for a false return to a fi. fa. against the goods of two, averred that both had goods, it was held sufficient to prove that one had goods within the bailiwick: Jones v. Clayton, 3 M. &S. 349. The same rule of law applies to criminal cases: so much of the indictment only need be proved, as charges the deft. with a substantive crime; as, when charged with composing, printing, and publishing a libel, he may be convicted only of printing and publishing: Rex v. Hunt, 2 Camp. 583; Rex v. Williams, ib. 646; 2 East's P. C. 515. As to Immaterial Averments, the rule is, that, if the whole of an averment may be struck out without destroying the right of action, it will not be necessary to prove it; but, if an essential part of the cause of action be lost thereby, the whole amount, though unnecessarily particular must be proved: Williamson v. Allison, 11 East, 452. In an action against the sheriff, for taking the goods of a tenant without leaving a year's rent, the declaration averred a contract between the plt. and the tenant, as was necessary, and also stated some particulars of the demise relative to the time of payment, which were necessary; yet, as no part of the contract, being in its nature entire, could be struck out, the unnecessary averments became material to be proved: Bristow v. Wright, 2 Doug. 664; 5 T. R. 496; 2 East, 450, 452; 8 East, 9. But, where, in tort for a breach of warranty, the declaration averred that the deft. knew the goods to be unfit for sale, as this averment might be struck out without destroying the right of action, the plt. recovered without proving the deft.'s knowledge: Williamson v. Allison, 11 East, 452; 2 East, 446. Matters of Inducement.] Averments which are merely matters of inducement, need not be proved with such precision as those which relate to the gist of the issue: 1 N. R. 210. In an action for double the value of goods, removed to prevent distress a certain sum was stated to be in arrear, but proof of notice of distress for a less sum was held sufficient. Here the averment of rent in arrear was necessary, the amount immaterial; and the damages to be measured, not by the quantity of rent, but the value of the goods: Gwinnett v. Phillips, 3 T. R. 643; 1 Ph. Ev. 195. See "VARIANCE." THE EVIDENCE MUST BE CONFINED TO THE ISSUE.] Such evidence alone ought to be admitted as relates to the questions in issue, and supports the several averments in the pleadings. As it must be considered |