ARTICLE FIFTH.

Action upon and assignment of a bond for jail liberties.

Sec. 160. Defence in action by sheriff on undertaking.

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

163. Requisites of application therefor.

164. Such judgment when stayed; when vacated.

165. Judgment against sheriff is evidence of damages.

166. Assignment of undertaking.

167. Action on undertaking 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. [Am'd, 1886.] Defence in action by sheriff 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.

From 2 R. S. 435 (Part 3, c. 7, tit. 6), § 48. Am'd by L. 1886, c. 648.

§ 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.

From 2 R. S. 435 (Part 3, c. 7, tit. 6), § 49.

§ 162. [Am'd, 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 judgment must be entered accordingly, with costs.

From Id., § 50. Am'd by L. 1886, c. 648.

§ 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.

From 2 R. S. 435 (Part 3, c. 7, tit. 6), § 51.

164. Such judgment when stayed; 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. From Id., §§ 52, 53.

§ 165. [Am'd, 1886.] Judgment against sheriff is evidence of damages.

In an action brought by a sheriff on an undertaking for the jail liberties, a judgment 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.

From 2 R. S. 435, § 54. Am'd by L. 1886, c. 648.

§ 166. [Am'd, 1886.] Assignment of undertaking.

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.

From 2 R. S. 436, § 55. Am'd by L. 1886, c. 648.

$167. [Am'd, 1886, 1904.] Recovery of damages for breach of condition.

The person so electing may maintain an action on the undertaking, where an action might have been heretofore maintained by the sheriff, and he may recover the same damages for the breach of the condition, which he might heretofore have recovered in an action against the sheriff for the escape.

From 2 R. S. 436, § 56. Am'd by L. 1886, c. 648; L. 1904, c. 384 (in effect April 26, 1904).

168. [Am'd, 1886.] Such assignment bars action against sheriff. 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 theriff or other officer accepting such an undertaking, for an escape by the prisoner executing the undertaking, amounting to a breach of the condition thereof, unless the escape was with the assent of the sheriff or other officer.

From 2 R. S. 436, § 57. Am'd by L. 1886, c. 648.

169. [Am'd, 1886, 1904.] Defence to action.

In an action brought as provided for in the last three sections, the defendant may make any defence, which he might heretofore have made, if the action was brought by the sheriff.

From 2 R. S. 436, § 58. Am'd by L. 1886, c. 648; L. 1904, c. 384 (in effect April 26, 1904).

170. Am'd, 1886] Stay of proceedings where assignment is not taken.

If the person so entitled to bring an 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 the 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.

From 2 R. S. 436, 437, § 59, 60. Am'd by L. 1886, c. 648.

f 171. [Am'd, 1904.] Defence of sheriff in action for escape, In an action against a sheriff or other officer, for the escape of a prisoner, it is a defense, 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, or that an undertaking required to be given by sections 149 and 150 of this act, was given and approved.

From 2 B. S. 437. § 64. Am'd by L. 1904, c. 384 (in effect Aril 26, 1906). 47

TITLE III.

Application of the foregoing provisions to the proceedings of a coroner.

Bec. 172. Duties of coroner when sheriff is a party.

173. Any one of the coroners may act.

174. Arrest of sheriff by coroner.

175. Sheriff; how confined.

176. Place of confinement to be deemed a jail.

177. Sheriff to be admitted to jail liberties; liability of coroner fos sheriff's escape.

178. Coroner may prosecute, etc., bond for liberties.

179. Duties of coroner where sheriff is plaintiff.

180. Such prisoner entitled to jail liberties, etc.

181. Escape of such prisoner.

172. Duties of coroner when sheriff is a party.

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.

From 2 R. S. 441 (Part 3, c. 7, tit. 6), 84.

§ 173. Any one of the coroners may act.

A mandate in a civil action or special proceeding which must or may be executed by the coroners, or by a coroner of a county, must be directed either to a particular coroner, 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.

From Id., § 84, 85.

174. [Am'd, 1886.] Arrest of sheriff by coroner.

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.

From Id., § 86. Am'd by L. 1886, c. 648.

175. Sheriff; how confined.

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 liberties 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.

From 2 R. S. 442 (Part 3, c. 7, tit. 6), § 87.

| 176. Place of confinement to be deemed a fail.

That house thereupon becomes 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.

m Id., §§ 88, 89.

¡ 177. [Am'd, 1886.] Sheriff to be admitted to jail liberties; liability of coroner for sheriff's escape.

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.

From Id., 442, § 90. Am'd by L. 1886, c. 648.

{178. [Am'd, 1886.] taking for liberties.

Coroner may prosecute, etc., ander

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. From 2 R. S. 442, § 91. Am'd by L. 1886, c. 648.

§ 179. Duties of coroner where sheriff is plaintiff.

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. From 2 R. S. 443, §§ 92, 93.

§ 180. [Am'd, 1886.] Such prisoner entitled to jail liberties, etc.

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 so 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 manner.

From 2 R. S. 443, §§ 93, 94. Am'd by L. 1886, c. 648.

181. Escape of such prisoner.

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.

From 2 R. S. 443, § 95.

§ 181a. [Added, 1902. Duties of county treasurer in Erie county. In the county of Erie the powers imposed and the duties conferred upon coroners by the provisions of this title shall be exercised and performed by the county treasurer of such county, and such county treasurer shall, in the exercise and performance thereof, be subject to the same liabilities and responsibilities as prescribed in this title in the case of coroners.

New. Added by L. 1902, c. 575 (in effect April 14, 1902).

¡¡ 182–189. [Omitted; see Table, p. ill.]

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