§ 150. [Am'd 1886.] The undertaking must be executed by the prisoner and one or more sufficient sureties, residents 67 N. Y. 237 and householders or freeholders of the county, in a penalty at least twice the sum in which the sheriff was required to hold the defendant to bail, if he is in custody under an order of arrest, or has been surrendered in exoneration of his bail before judgment; or directed to be collected by the execution, if he is in custody under an execution; or remaining uncol lected upon a judgment against him if he has been surrendered after judgment; conditioned that the person so in custody shall remain a prisoner, and shall not, at any time or in any manner, escape or go without the liberties of the jail, until discharged by due course of law. The provisions regulating the justification of bail, contained in article third of title first of chapter seventh of this act, govern, except as otherwise expressly prescribed in this article with respect to the notice of justification of the sureties; the officers before whom they must justify; the substitution of new sureties or a new undertaking; the examination and qualifications of the new sureties, and the allowance of the undertaking. But after the allowance the undertaking must be delivered to the party at whose instance the prisoner is in custody. $151. [Am'd 1886.] An undertaking so taken is held for the indemnity of the sheriff taking it, and of the party at whose instance the prisoner executing it is confined. § 152. [Am'd 1886.] If the party at whose instance the prisoner is in custody discovers that a surety therein is insufficient, he may, upon proof of the fact, by affidavit or otherwise, apply to the court or to a judge thereof, on whose process or mandate such prisoner is in custody, or to the county judge of the county where such prisoner is confined, and the court or a judge thereof, or such county judge may make an order committing such prisoner to close confinement in the jail until another undertaking, with good and sufficient sureties, is offered. $153. [Am'd 1886.] One or more of the sureties in an undertaking given for the liberties of a jail may surrender the principal at any time before judgment is rendered against them in an action on the undertaking, but they are not exonerated thereby from a liability incurred before making the surrender. § 154. [Am'd 1886.] The surrender must be made as follows: The surety or sureties making it must take the principal to the keeper of the jail, who must, upon his or their written requisition to that effect, take the principal into his cutody and indorse upon the undertaking given for the liberties, an acknowledgment of the surrender, and also, if required give the surety or sureties a certificate, acknowledging the surrender. § 155. [Am'd 1886.] The going at large within the liber ties of the jail in which he is in custody, of a prisoner who has executed such an undertaking, or of a prisoner who would be entitled to the liberties upon executing such an undertaking, is not an escape. But the going at large beyond the liberties by a prisoner, without the assent of the party at whose instance he is in custody, is an escape, and the sheriff in whose custody he was, or his sureties, has the same authority to pur 111 N. Y.584. sue and retake him as if he had escaped from the jail. Such an escape forfeits the undertaking for the liberties, if any, subject to the provisions of the next article of this title. § 156. [Am'd 1877.] Where a person, who has been indicted for a criminal offence, is held by a sheriff, by virtue of a mandate in a civil action or special proceeding, the court, in which the indictment is pending, may make an order, requiring the sheriff to bring him before the court, whereupon the court may make such disposition of the prisoner, as to it seems proper. The sheriff's fees and expenses, in so doing, are a county charge of the county wherein the court is sitting. § 157. A prisoner, committed to jail upon process for contempt. or committed for misconduct in a case prescribed by law, must be actually confined and detained within the jail, until he is discharged by due course of law, or is removed to another jail or place of confinement, in a case prescribed by law. A sheriff or keeper of a jail, who suffers such a prisoner to go or be at large out of his jail, except by virtue of a writ of habeas corpus, or by the special direction of the court committing him, or in a case specially prescribed by law; is liable to the party aggrieved, for his damages snstained thereby, and is guilty of a misdemeanor. If the commitment was for the non-payment of a sum of money, the amount thereof, with interest, is the measure of damages. § 158. [Am'd 1886.] Where a prisoner in a sheriff's custody goes or is at large beyond the liberties of the jail, without the assent of the party at whose instance he is in custody, the sheriff is answerable therefor until an undertaking for the liberties of the jail is given and approved, in an action against him as follows: 1. If the prisoner was in custody by virtue of an order of arrest or in consequence of a surrender in exoneration of his bail before judgment, the sheriff is answerable to the extent of the damages sustained by the plaintiff. 2. If the prisoner was in custody by virtue of any other 84 N. Y. 445. mandate or in consequence of a surrender in exoneration of his bail after judgment, the sheriff is answerable for the debt, damages, or sum of money, for which the prisoner was committed. § 159. A sheriff or other officer, who demands or receives a reward, gratuity, or other valuable thing, to procure, assist, connive at, or permit an escape of a prisoner in his custody, is guilty of a misdemeanor, and shall be punished accordingly. A conviction also operates as a forfeiture of his office, and disqualifies him forever thereafter from holding the same. ARTICLE FIFTH. ACTION UPON AN ASSIGNMENT OF A BOND FOR JAIL LIBERTIES. 2160. Defence in action by sher iff on undertaking. 162. Summary judgment for 163. Requisites of application 164. Such a judgment when 165. Judgment against sheriff is evidence of damages. 166. Action on forfeited undertaking. 167. Id.; damages recoverable. 169. Defence in action on for- 171. Defence of sheriff in ac- S$ 160-168 ACTION ON BOND FOR LIBERTIES. 31 160. [Am'd 1886.] In an action brought on an undertaking for the jail liberties, it is a defence that the prisoner voluntarily returned to the liberties of the jail from which he escaped or was recaptured by, or surrendered to the sheriff from whose custody he escaped before the commencement of the action. The defendants may make that or any other defence to the action, which might be made by the sheriff to an action against him for the escape. $161. But if judgment has been rendered against the sheriff, in an action brought for the escape, and due notice of the pendency of the action was given to the prisoner and his sureties, to enable them to defend the same, the judgment against the sheriff is conclusive evidence of his right to recover against the prisoner and his sureties, to whom the notice was given, as to any matter which was or might have been controverted, in the action against the sheriff. § 162. [Am'd 1886.] In an action brought by a sheriff on 18 App. Div. an undertaking for the jail liberties, if it appears to the court, 128; 30 Id. upon a motion made in behalf of the sheriff, that judgment 191; 33 Id. has been rendered against him for the escape of the prisoner, 551. and that due notice of the pendency of the action against him was given to the prisoner and his sureties to enable them to defend the same, the court must order a summary judgment for the plaintiff; and the judgment must be entered accordingly, with costs. $163. But to entitle a sheriff to move for such a judgment, he must have served a copy of his complaint, and given twenty days' notice of the motion. $164. If it appears, on the hearing of the motion, that the defendants have a meritorious defence, which was not controverted in the action against the sheriff, and which by law could not have been so controverted, the court may stay proceedings on the judgment, with such limitations and upon such terms, as it deems just, until a trial in the action; but the judgment must stand as a security for the sheriff. If the defence is established, the court must vacate the judgment, and render judgment for the defendant. $165. [Am'd 1886.] In an action brought by a sheriff on 33 App. Div. an undertaking for the jail liberties, a judgment against him 551. for the escape of the prisoner is evidence of the damages sustained by him, as if it had been collected; and he may recover his reasonable attorney's and counsel fees and other expenses in defending the action against him, as part of his damages. $166. [Am'd 1886.] If an undertaking for the jail liberties is forfeited before the same is duly allowed, the party at whose instance the prisoner was confined, or in case of his death, his executor or administrator, may elect to bring an action on the undertaking. 167. [Am'd 1886.] The person so electing may maintain an action, on the undertaking in a case where an action 18 Hun, 428. might be maintained by the sheriff, and he may recover the same damages for the breach of the condition which he might have recovered in an action against the sheriff for the escape. $168. [Am'd 1886.] The commencement of such an action shall be deemed an election and is a bar to an action by or on behalf of such person against the sheriff or other officer accepting such an undertaking, for an escape by the prisoner C. 185. executing the undertaking, amounting to a breach of the condition thereof, unless the escape was with the assent of the sheriff or other officer. § 169. [Am'd 1886.] In an action brought as provided in the three last sections, the defendant may make any defense which he might make if the action was brought by the sheriff. $ 170. [Am'd 1886.] If the person so entitled to bring an 15 Abb. N. action on the undertaking for the jail liberties, in lieu of making such election brings an action against the sheriff for the escape, the court may, except where the escape was made with sheriff's assent, stay proceedings upon a judgment recovered against the sheriff, with such limitations and upon such terms as it deems just, until he has had a reasonable time to prosecute the undertaking and collect a judgment recovered thereon. § 171. In an action against a sheriff or other officer, for the escape of a prisoner, it is a defence, that the escape was without the assent of the defendant, and that at the commencement of the action, he had the prisoner within the liberties, either by his voluntary return, or by recapture. TITLE III. Application of the foregoing provisions to the proceedings of a coroner. 172. Duties of coroner when sheriff is a party. 173. Any one of the coroners 174, Arrest of sheriff by coro ner. 175. Sheriff; how confined. jail liberties; liability 178. Coroner may prosecute, 180. 181. 177. Sheriff to be admitted to $172. In an action or special proceeding, to which the sheriff of a county is a party, a coroner of the same county has all the power, and is subject to all the duties of a sheriff, In a cause to which the sheriff is not a party; except as otherwise specially prescribed by law. § 173. A mandate in a civil action or special proceeding which must or may be executed by the coroners, or by a cor. orer of a county, must be directed either to a particular cor. oner, or generally to the coroners of that county. Where such a mandate is directed generally to the coroners of a county, or requires them to do any act, it may be executed, and a return thereto may be made and signed, by one of them, but such an act or return does not affect the others. § 174. [Am'd 1886.] Where a mandate requiring the arrest of the sheriff of the county, is directed to a coroner, he must execute the same in the manner prescribed by law, with respect to the execution of a similar mandate by a sheriff, and he is authorized to take an undertaking on the arrest, or an undertaking for the jail liberties in a like case, and in like manner, and with like effect, as where such an undertaking may be taken by a sheriff. · $ 175. Where the actual confinement of a sheriff by a coroner, on a mandate, is required or authorized by law, he must be confined by the coroner, in a house situated within the lib trties of the jail of the county, other than the sheriff's house, or the jail, in the same manner as a sheriff is required by law to confine a prisoner in the jail. $176. That house thereupon become the jail of the county, for the use of the coroner; and each provision of law relating to the jail or to an escape from the jail, applies thereto, while the sheriff is confined therein. § 177. [Am'd 1886.] A sheriff so arrested must be admitted to the liberties of the jail of the county, in a like case, and upon executing a like undertaking to the coroner, as prescribed by law for a prisoner in the sheriff's custody. For an escape of the sheriff from the liberties, the coroner is liable, in the same manner and to the same extent as a sheriff for a similar escape, and he may make the same defence as a sheriff. $178. [Am'd 1886.] The coroner may prosecute an undertaking for the liberties taken by him, and is entitled to all the rights and subject to all the liabilities prescribed by law, with respect to a similar undertaking taken by a sheriff. The undertaking may be assigned by him to the party at whose instance the sheriff was arrested, and the same proceedings may be had thereupon as upon an undertaking taken and assigned by a sheriff in a similar case. $179. A person arrested by a coroner, in an action or special proceeding, in which the sheriff of the county is plaintiff, must be confined in the jail of the county, in a case where such a confinement is required or authorized by law; but the coroner is not liable for an escape of the prisoner from the jail, after he has been confined therein. A person so confined must be kept and treated, in all respects, like a prisoner confined by the sheriff. $180. [Am'd 1886.] A person so arrested by a coroner is entitled to be discharged, or to the liberties of the jail, as the case requires, upon giving an undertaking to the coroner in the like manner, and in a like case, in which a person arrested by a sheriff would be entitled to be discharged, or to the liberties. The undertaking so given must be in all respects similar to that required to be given to a sheriff, and it has the like effect, and may be assigned and proceeded upon in like man ner. $181. A coroner is answerable for an escape of a prisoner, admitted by him to the liberties of the jail, in the same manner and to the same extent, as a sheriff, and may interpose a like defence. TITLE IV. Powers, duties and liabilities of an incoming and outgo ing sheriff, respectively, touching the matters included in this chapter.* For the law regulating sheriffs in the county of New York, see L. 1890 c 523. |