§ 153. [Am'd, 1886.] Surrender of prisoner by his sureties. 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.

2 R. S. 434, § 45, am'd; L. 1886, ch. 648.

§ 154. [Am'd, 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.

Id., § 46; L. 1886, ch. 648.

§ 155. [Am'd, 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. 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. Such an escape forfeits the undertaking for the liberties, if any; subject to the provisions of the next article of this title. Id., § 47; L. 1886, ch. 648.

§ 156. [Am'd, 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 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.

L. 1871, ch. 208, § 1 (9 Edm. 67).

§ 157. Prisoner committed for contempt.

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 sustained 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.

2 R. S. 437, § 61, am'd.

§ 158. [Am'd, 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 ar rest, 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 man date, 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.

2 R. S. 437, §§ 62 and 63; L. 1886, ch. 648.

§ 159. 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 misde meanor, 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 and assignment of a bond for juil liberties.

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

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. 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. [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.

2 R. S. 435, § 48; L. 1886, ch. 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.

Id., § 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.

Id., § 50; L. 1886, ch. 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.

§ 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.

2 R. S. 435, §§ 52 and 53, am'd.

§ 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.

Id., § 54; L. 1886, ch. 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.

Id., § 55; L. 1886, ch. 648.

§ 167. [Am'd, 1886.] Action on undertaking by assignee; damages recoverable.

The person so electing may maintain an action on the undertaking, where an action 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.

Id., § 56; L. 1886, ch. 648.

§ 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 sheriff 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.

Id., 57; L. 1886, ch. 648.

§ 169. [Am'd, 1886.] Defence in action by assignee. In an action brought as provided for in the three last sections, the defendant may make any defence, which he might make, if the action was brought by the sheriff.

Id., § 58; L. 1886, ch. 648.

§ 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.

Id., §§ 59 and 60; L. 1886, ch. 648.

171. 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 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.

2 R. S. 435, § 64.

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