Both the objections are unavailable on the present, occasion. The case from Kirby is inapplicable, because grounded on a special act of the legislature, which cannot be extended to this state. Until our own legislature change the common law in this particular, we must adopt it as the rule for our government; and by that the sheriff is answerable for an escape under circumstances like the present.

The judgment also was the best possible proof that could have been produced ; it was conclusive against Freeman, and the sheriff can stand in no better a situation.

Rule discharged.