bail; is entitled to be admitted to the liberties of the jail, upon delivering to the sheriff an undertaking as prescribed in the next section.

2 R. S. 432, 40. See ante, 15. Jackson v. Billings, 1 Cai, 252; People v. Bennett, 4 Paige, 282; Patrick v. Warner; People v. Cowles, 3 Abb. App. Dec. 507; s. c., 4 Keyes, 38; reversing 34 How. 431; Bradford v. Consaulus, 3 Cow, 128.

$150. [Amended, 1886.] Undertaking to be executed by prisoner; its contents.-The undertaking must be executed by the prisoner, and one or more sufficient sureties, residents, 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 uncollected 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. As to dposit § 573.

Id., 88 41 and 42. Sullivan v. Alexander, 19 Johns. 233; Holmes v. Lansing, 3 Johns. Cas. 73; Dole v. Moulton, 2 id. 205; Smith v. Jansen, 8 Johns. 111.

151. [Amended, 1886.] For whom undertaking to be held. 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.

2 R. S. 434, 243. Peters v. Henry, 6 Johns. 121.

152. [Amended, 1886.1 Prisoner to be committed when surety is insufficient.-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.

'Id., 244.

153. [Amended, 1886.] Surrender of prisoner by of sureties. One or more of the sureties, in an undertakriven for the liberties of a jail, may surrender the prin

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. Id., 45, am'd. Betts v. Livermore, 1 Sandf, 686.

§ 154. [Amended, 1886.] How surrender made.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 custody, 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.

2 R. S. 434, 8 46. See Steelman v. Mattix, 20 Am. Rep. 389; 1 Wait's Pr. 670 Metcalf v. Stryker, 31 N. Y. 255; Nicolls . Ingersoll, 7 Johns. 145; Bushnell v. Bushnell, 15 Barb. 399; In re Taylor, 7 How. 212; Harp v. Osgood, 2 Hill, 218; Gregg v. Pierce, 53 Barb. 387.

$155. [Amended, 1886.] What deemed and what not deemed an escape. The going at large, within the liberties 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.(1) 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 pursue and retake him, as if he had escaped from the jail.(2) Such an escape forfeits the undertaking for the liberties, if any; subject to the provisions of the next article of this title.

Id., 47. Holmes v. Lansing, 3 Johns. Cas. 73; Peters v. Henry. 6 Johns. 121. (1) Lockwood v. Mercereau, 6 Abb. Pr. 206. (2) Bissell . Kip, 5 Johns. 89; 13 id. 503; Kip v. Brigham, 7 id. 168; Steward . Kip, id. 165; Stone v. Woods, 5 d. 182: Day v. Brett, 6 id. 22; Tracey v. Whipple, 8 id. 379; Hinds v. Doubleday, 21 Wend. 223: Pinckney v. Hegeman, 53 N. Y. 31; Wool v. Turner, 10 Johns. 420; Bronson v. Earl, 17 id. 63; Van Wormer v. Van Voast, 10 Wend. 356.

§ 156. [Amended, 1877.] When court may order indicted prisoner to be produced. 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 tc 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 Bitting.

L. 1871, ch. 208, 1 (9 Edm. 67).

A pris

§ 157. Prisoner committed for contempt. oner, 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. (1) 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 sustained thereby, and is guilty of a misdemeanor.(2) If the commitment was for the non-payment of a sum of money, the amount thereof, with interest, is the measure of damages.

2 R. S. 437, 61, am'd. (1) People v. Cowles, Keyes, 33; s. c., 3 Abb. Dec. 507; Ford v. Ford, 41 How. 169; e. c., 10 Abb. 74; Ward v. Ward, 6 id. 79. (2) Loosey v. Orser, 4 Bosw. 391.

158. [Amended, 1886.] Sheriff's liability for escape. 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. (1)

2. If the prisoner was in custody by virtue of any other mandate, or in consequence of a surrender in ex oneration of his bail, after judgment, the sheriff is answerable for the debt, damages, or sum of money, for which the prisoner was committed.(2)

Id., 22 62 and 63. (1) Van Slyck v. Hogeboom, 6 Johns. 270; Smith . Knapp, 30 N. Y. 581: Daguerre v. Orser, 10 Abb. 12; s. c., 15 id. 113; Paterson v. Westervelt, 17 Wend. 543; Loosey v. Orser, 4 Bosw. 391: Russell v. Turner, 7 Johns. 189. (2) Brown v. Genung, 1 Wend. 115; Brown v. Littlefield, id. 398; Rawson v. Dole, 2 Johns. 454; Barnes v. Willett, 11 Abb. 225; Bacon v. Cropsey, 7 N. Y. 195.

$169. Penalty for connivance at escape, by a sheriff, etc. 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 oper

ates as a forfeiture of his office, and disqualifies him forever thereafter from holding the same.

2 R. S. 438, 22 65 and 66.

ARTICLE FIFTH.

ACTION UPON AND ASSIGNMENT OF A BOND FOR JAIL LIBERTIES.

SEC. 160. Defence in action by sheriff on bond.

161. Judgment against sheriff to be evidence against suretles, etc. 162. Summary judgment for sheriff.

163. Requisites of application therefor.

164. Such judgment when stayed. Id.; when vacated.

165. Judgment against sheriff is evidence of damages.
166. Assignment of bond.

167. Action on bond by assignee; damages recoverable.
168. Such assignment bars action against sheriff.
169. Defence in action by assignee.

170. Stay of proceedings where assignment is not taken.
171. Defence of sheriff in action for escape.

160. [Amended, 1886.] Defence in action by sher iff on undertaking. 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.

2 R. S. 435, 48. Middle District Bank v. Deyo, 6 Cow. 732; Ray .. Hogeboom, 11 Johns. 433; Stone v. Woods, 5 id. 182; Lockwood v. Mercereau, 6 Abb. 206; Bronson v. Earl, 17 Johns. 63; Dole v. Moulton, 1 Johns. Cas. 205; Lohnis v. Jones, 11 Johns. 174; Thompson v. Lockwood, 15 id. 256; Loosey v. Orser, 4 Bosw. 391; French v. Willett, 10 id. 579.

161. Judgment against sheriff to be evidence against sureties, etc. 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.

Id., 49. Kettle. Life, 6 Barb. 469; Kip v. Bingham, 6 Johns. 158;7 d. 168.

162. [Amended, 1886.] Summary judgment for sheriff.- In an action brought by a sheriff on an undertaking for the jail liberties, if it appears to the court, upon a motion made in behalf of the sheriff, that judgment has been rendered against him, for the escape of the prisoner, 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 judg ment must be entered accordingly, with costs.

2 R. S. 435, 50.

$163. Requisites of application therefor. 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.

Id., § 51.

§ 164. Such judgment when stayed. Id.; when vacated. - 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.

Id., 28 52 and 53, am'd.

$165. [Amended, 1886.] Judgment against sheriff is evidence of damages. In an action brought by a sheriff on an undertaking for the jail liberties, a judg ment against him 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.

Id 2 54.

$166. [Amended, 1886.] Assignment of undertaking. If an undertaking for the jail liberties is forfeited be fore 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 2 R. S., 435, 55. Skinner v. Fleet, 14 Johns. 263; Morton v. Campbell, 14 Abb. 410; s. c.. 37 Barb. 179.