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any defense thereto, which might be made by the sheriff in an action against him for an escape.

[Code Civ. Pro., §§ 158, 160. By the amendment to § 158 made by chapter 648 of L. 1886, it was provided that the sheriff was only answerable for the escape of a civil prisoner "until an undertaking for the liberties of the jail has been given and approved." The apparent result of this amendment was to shift the liability from the sheriff to the sureties on the undertaking after the approval thereof.]

§ 77. Action against either the sheriff or the sureties for an escape. If a civil prisoner escapes after an undertaking for the liabilities of the jail is delivered to the sheriff and before it is accepted or approved as provided by law, 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 against the sheriff or the sureties on the undertaking. The commencement of an action against the sureties on the undertaking shall be deemed an election, and bars an action against the sheriff or other officer accepting such undertaking, on account of the escape of the prisoner executing the undertaking, unless such escape was with the assent of the sheriff or other officer.

[Code Civ. Pro., §§ 166, 167.]

§ 78. Effect of judgment in an action against the sheriff. If the action is brought against the sheriff for the escape of a civil prisoner after the delivery of an undertaking, and before its acceptance or approval, and due notice of the pendency of the action was given the prisoner and his sureties, to enable them to defend the same, and a judgment has been rendered against the sheriff, such judgment is conclusive evidence of the right of the

sheriff 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.

[Code Civ. Pro., § 161.]

$ 79. Judgment for sheriff in action against sureties.-In an action brought by the sheriff against the sureties on an undertaking, the court must order a summary judgment for the plaintiff, upon motion made in behalf of the sheriff, if it appears that judgment has been rendered in an action against him for the escape of the prisoner and that due notice of the pendency of such action was given to the prisoner and his sureties, to enable them to defend the same.

Such judgment must thereupon be entered, with costs.

To entitle a sheriff to move for such a judgment a copy of his complaint must have been served upon the prisoner and his sureties and at least twenty days notice of the motion be given to them.

[Code Civ. Pro., §§ 162-163.]

§ 80. Stay of judgment for sheriff against sureties.-If it ap pears, upon the hearing of the motion, that the defendants have a meritorious defense, which was not and could not have been controverted in the action against the sheriff, 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 security for the sheriff. If the defence is established, the court must vacate the judgment, and render judgment for the defendant.

[Code Civ. Pro., § 164.]

§ 81. Judgment against sheriff is evidence of damages.-In an action brought by a sheriff against the sureties on an undertak ing 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.

[Code Civ. Pro., § 165.]

§ 82. Arrest of sheriff by coroner.—Where a civil mandate requiring the arrest of the sheriff of a county is directed to a coroner, he must execute the same in the manner prescribed by law for the execution of a similar mandate by a sheriff; and he may take an undertaking on the arrest, or an undertaking for the jail liberties, in a like case and manner, and with like effect, as where such an undertaking is taken by a sheriff.

[Code Civ. Pro., § 174,

without change in substance.]

§ 83. Confinement of sheriff by coroner; jail liberties.-Where the actual confinement of a sheriff by a coroner, on a civil 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. Such 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.

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 under

aking to the coroner, as prescribed by law for a prisoner in the sheriff's custody.

If the sheriff escapes, the coroner and the sureties on such undertaking are liable in the same manner and to the same extent, and are entitled to the same defenses, as in the case of the escape of a civil prisoner from a sheriff.

[Code Civ. Pro., §§ 175, 176, 177, 178,

consolidated without change in substance.]

§ 84. Duties of coroner when 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.

[Code Civ. Pro., § 179,

without change.]

§ 85. Civil prisoner in custody of coroner entitled to jail liberties, et cetera; escape.-A person so arrested by a coroner, is entitled to be discharged, or to the liberties of the jail, in the same case and in like manner, and under the same conditions as a civil prisoner in the custody of the sheriff. The undertaking given for the jail liberties by a person so arrested must be similar in all respects to that required to be given to a sheriff; and it has the like effect and may be proceeded upon in the same

manner.

A coroner is answerable for an escape of a civil 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.

[Code Civ. Pro., §§ 180, 181.]

ARTICLE IV.

PENITENTIARIES.

Section 90. Establishment of penitentiaries.

91. Articles not to apply to New York and Kings

counties.

92. Management of penitentiaries.

93. Removal of managers.

94. Organization of board of managers; meetings.

95. President and secretary.

96. Treasurer.

97. Powers and duties of board of managers.

98. Annual report of board of managers.

99. Officers, terms and compensation.

100. Undertaking of superintendent.

101. Powers and duties of superintendent.

102. Removal of officers.

103. Annual estimates of boards of managers; money to

be raised.

104. Payment of claims against a penitentiary.

105. Purchase of supplies.

106. Inventory of penitentiary property.

107. Officers and employes not to be interested in pur

chases.

108. County contracts with penitentiaries.

109. Convicts sentenced to penitentiaries for felonies.

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