For the county of Rensselaer, the whole of the city

of Troy.

L. 1846, ch. 32; L. 1851, ch. 202; L. 1859, ch. 193; L. 1861, ch. 61 and 73; L. 1863, ch. 186; L. 1872, ch. 16 and 538; L. 1873, ch. 196 and

602

146. Jail liberties in other counties. The liberties of the jail, in each of the other counties of the State, as heretofore established, shall continue to be the liberties thereof, until they are altered, or new liberties are established, as prescribed by law.

? R. S. 432, 33 (3 R. S., 5th ed., 731; 2 Edm. 451). Peters v. Henry, Johas. 121; Chamberlain v. Campbell, 39 Barb. 642.

$147. Jail liberties, how laid out. Where the liberties of a jail are altered or established, by resolution of the board of supervisors, as prescribed by law, a space of ground, adjacent to the jail, and not exceeding five hundred acres in quantity, must be laid out as the jail liberties, in a square or rectangle as nearly as may be; but a stream of water, canal, street, or highway, may be adopted as an exterior line, notwithstanding it is not in a straight line, or is not at right angles with the other exterior line of the liberties. A resolution establishing or altering jail liberties, must contain a particular description of their boundaries; and as soon as may be after its adoption, the boundaries must be designated by monuments, inclosures, posts, or other visible and permanent marks, at the expense of the county.

Id.. 34: L. 1875, ch. 482, 1.

148. Copy to be kept posted in jail. — The county clerk must, within one week after a resolution of the board of supervisors, establishing or altering jail liberties, has been filed in his office, deliver an exemplified copy thereof to the keeper of the jail; who must keep the same exposed to public view, in an open and public part of the jail, and exhibit it to each person admitted to the liberties of the jail, at the time of his executing a bond for that purpose.

Id., 38 and 39.

§ 149. Who admitted to liberties. A person in the custody of a sheriff, by virtue of an order of arrest; or of an execution in a civil action; or in consequence of a surrender in exoneration of his bail; is entitled to be

admitted to the liberties of the jail, upon executing a bond to the sheriff, as prescribed in the next section.

2 R. S. 432, 40. See ante, 15. Jackson v. Billings, 1 Cai. 252; People v. Bennett, Paige, 282; Patrick v. Warner; People v. Cowles, 3 Abb. App. Dec. 307; s. c., 4 Keyes, 38; reversing 34 How. 481; Bradford v. Consaulus, 3 Cow. 128.

150. Bond to be executed by prisoner; its contents. -The bond 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 judg ment; 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.

Id., 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, S Johns. 111.

$151. For whom bond to be held.-A bond 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, § 43. Peters v. Henry, 6 Johns. 121.

152. Prisoner to be committed when surety is insufficient. - If a sheriff, who has taken such a bond, discovers that a surety therein is insufficient, he may commit the prisoner who executed it to close confinement in the jail, until another bond, with good and sufficient sureties, is offered.

Id., 44.

§ 153. Surrender of prisoner by his sureties. - One or more of the sureties, in a bond 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 bond: but they are not exonerated thereby, from a liability incurred before making the surrender.

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

§ 164. 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 bond 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, 46. See Steelman v. Mattix. 20 Am. Rep. 389; 1 Walt's Pr. 670; Metcalf v. Stryker, 31 N. Y. 255; Nicolls e. Ingersoll, 7 Johns. 145; Bushnell. Bushnell, 15 Barb. 399; In re Taylor, 7 How. 212; Harp v. Osgood, 2 Hill, 218; Gregg v. Pierce, 53 Barb. 367.

155. 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 a bond, or of a prisoner who would be entitled to the liberties upon executing such a bond, 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 in custody, is an escape; and the sheriff in whose custody he was, has the same authority to pursue and retake him, as if he had escaped from the jail.(2) Such an escape forfeits the bond for the liberties, if any; subject to the provisions of the next article of this title.

Id.. 47. Holmes . Lansing, 3 Johns. Cas. 73; Peters v. Henry, 6 Johns. 121. (1) Lockwood v. Mercereau, 6 Abb. Pr. 206. (2) Bissell . Kip, 5 Johns. 69; 13 id. 503; Kip v. Brigham, 7 id. 168; Steward . Kip, id. 165; Stone v. Woods, 5 id. 182; Day v. Brett, 6 id. 22; Traces e. Whipple, 8 id. 379: Hinds e. Doubleday, 21 Wend. 223: Pinckney. Hegeman, 53 N. Y. 31; Wool . Turner, 10 Johns. 420; Bronson 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 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. (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, 4 Keyes, 38; s. c.,3 Abb. Dec. 507; Ford v. Ford, 41 How. 169; s. c., 10 Abb. 74; Ward v. Ward, 6 id. 79. (2) Loosey v. Orser, 4 Bosw. 391.

§ 158. 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, 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 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)

Id., 62 and 63. (1) Van Slyck v. Hogeboom, 6 Johns. 270; Smith e. 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 r. Turner, 7 Johns. 189. (2) Brown v. Genung, 1 Wend. 115; Brown v. Littlefield, id. 398; Rawson r. Dole, 2 Johns. 454; Barnes v. Willett, 11 Abb. 225; Bacon . Cropsey, 7 N. Y. 195.

$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 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 B. 8. 438, 65 and 66.

ARTICLE FIFTH.

ACTION UPON AND ASSIGNMENT OF A BOND FOR JAIL LIBERTIES.

8ec. 160. Defence in action by sheriff on bond.

161. Judgment against sheriff to be evidence against sureties, etc. 162. Subimary 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. Defence in action by sheriff on bond. — In an action brought by a sheriff on a bond 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 e. Deyo, 6 Cow. 732; Ray . Hogeboom, 11 Johns. 433; Stone v. Woods, 5 d. 182; Lockwood v. Mercereau, 6 Abb. 206; Bronson v. Earl, 17 Johns. 63; Dole . Moulton, 2 Johns. Cas. 205; Lohnts v. Jones, 11 Johns. 174; Thompson v. Lockwood, 15 d. 256; Loosey v. Orser, 4 Bosw. 391; French . 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 v. Life, 6 Barb. 469; Kip v. Bingham, 6 Johns. 153; 7 d. 168.