TITLE 6. titled to recover the costs, and his reasonable expenses in defending the suit against him, as part of his damages. 86 Assigning bond. Action; dam. ages therein. Effect of as9- Defence to action of as signee. $55. If any such bond shall be forfeited, the party at whose suit the prisoner executing the same shall have been confined, or in case of his death, the executors or administrators of such party, shall be entitled to an assignment thereof, which shall be made by the sheriff taking the same, or in case of a vacancy in his office, by his undersheriff, by an endorsement on such bond, executed in the presence of one or more witnesses.87 $56. The party to whom such assignment shall have been made, may maintain an action on such bond, as assignee of the sheriff tak ing the same, in the same cases in which such action might be maintained by such sheriff; and upon obtaining judgment therein, he shall recover damages for such breaches of the condition as shall have been assigned by him, as follows: 1. If the prisoner escaping was confined by virtue of an execution, or by virtue of an attachment for non-payment of costs, the measure of the plaintiff's damages shall be, the amount directed to be levied by such execution or attachment, with interest thereon to the time of such recovery: 2. If such prisoner was confined by virtue of a capias ad respondendum, or upon a surrender in exoneration of his bail, made before or after judgment rendered against him, the plaintiff shall recover only the actual damages sustained by him.87 $57. The acceptance of an assignment of any such bond, shall be a bar to any action by or on behalf of the party receiving such assignment, against the sheriff or other officer making the same, for any escape by the prisoner executing such bond, amounting to a breach of such bond, 87 $58. In every action brought by the assignee of such bond, the defendants shall be entitled to plead a voluntary return of the prisoner to the liberties of the jail, before the commencement of such action, in bar thereof, and to make any defence which they would be entitled to make, if such action had been brought in the name and for the benefit of the sheriff to whom such bond was executed. Staying pro- $ 59. In case the party at whose suit any person shall have been ceedings against sheriff. confined to the liberties of a jail, shall refuse or neglect to take an assignment of the bond executed by such person, as herein before provided, and shall prosecute any sheriff for the escape of such person, the court in which such action shall be pending, shall, by rule, stay all proceedings upon the judgment against such sheriff, until he shall have had a reasonable time to prosecute the bond taken by him, and to collect the amount of any judgment he may recover thereon.88 (86) 1 R. L. p. 430, § 9. (87) Ib. § 7. (88) Ib. § 8. Not in case of $60. But the last preceding section shall not extend to authorise ART. 4. such stay of proceedings, in any action where the judgment shall have been recovered against any sheriff, for any escape committed with voluntary eathe assent, aid or assistance of such sheriff.8 89 ARTICLE FOURTH. Of Escapes, and the Liabilities of Sheriffs therefor. SEC. 61. Certain prisoners to be closely confined. 62. Other prisoners being without liberties, an escape. 63. Ib. and amount of damages in certain cases. 64. Defence by sheriff to action for escapes. 65 & 66. Penalty on sheriff receiving reward for escape, &c. cape. ers to be fined. $61. All prisoners committed to any jail upon process for con- When prisontempt, or committed for misconduct in the cases prescribed by law, closely conexcept on attachments for the non-payment of costs, shall be actually confined and detained within such jail, until they shall be from thence discharged by due course of law, or shall be removed to some other jail or place of confinement, in the cases provided by law; and if any sheriff or keeper of a jail, shall permit or suffer any prisoner so committed to such jail, to go or be at large out of his prison, except by virtue of some writ of habeas corpus, or rule of court, or in such other cases as may be provided by law, he shall be liable to the party aggrieved, for his damages sustained thereby, and shall be deemed guilty of a misdemeanor.90 without liber cape. $62. If any prisoner committed to any jail, by virtue of any capias When being ad respondendum, or other mesne process, or upon a surrender in ex- tics an es oneration of his bail, made either before or after judgment rendered, shall go or be at large without the limits and boundaries of the liberties of such jail, without the assent of the party at whose suit such prisoner shall have been committed, the same shall be deemed an escape of such prisoner, and the sheriff having charge of such jail shall be answerable therefor to such party, in an action of trespass on the case, to the extent of the damages sustained by him.90 $ 63. If any prisoner committed to any jail, in execution in a civil b action, or upon an attachment for the non-payment of costs, shall go or be at large without the boundaries of the liberties of such jail, without the assent of the party at whose suit such prisoner was committed, the same shall be deemed an escape of such prisoner, and the sheriff having charge of such jail, shall be answerable therefor to such party, for the debt, damages or sum of money for which such prisoner was committed, to be recovered by an action of debt.90 sheriff $ 64. In every action against a sheriff or other officer, for the es- Defence by cape of any prisoner, the defendant may plead or give notice, that before the commencement of such action, such prisoner voluntarily returned to the jail from which he had escaped, or to the liberties thereof; or (89) 1 R. L. p. 430, § 8. (90) Ib. p. 425, § 19 & 21. TITLE 6. that such defendant retook such prisoner, and had him within the jail from which he escaped, or within the liberties thereof, before the commencement of such action; and in either case, that such escape was made without the consent of such defendant.91 Penalty on sherif Ib. Evidence of fied. $65. Every sheriff or other officer, who shall demand or receive any reward, gratuity or valuable thing, to procure, assist, connive at or permit, any escape of any prisoner in his custody, shall be deemed guilty of a misdemeanor.92 $66. Every sheriff or other officer, who shall be convicted of a violation of the last section, shall forfeit his office, and be forever thereafter incapable of executing the same. 92 ARTICLE FIFTH. Proceedings on the Election or Appointment of a new Sheriff. 69. Things to be delivered by him to his successor. 70. Statement of articles delivered, how signed and receipted, &c. 71. Power of former sheriff defined. 72. When capias to be delivered to new sheriff, &c. $67. When any new sheriff shall be elected or appointed in the having quali- place of any other, or upon the expiration of the term of any sheriff's office, and shall have qualified and given the security required by law, the clerk of the county shall grant a certificate, under his official seal, that the person so appointed or elected, has qualified and given such security. 12W:276 Former she $68. Upon the service of such certificate on the former sheriff, riff how su- his powers as such sheriff, except when otherwise expressly provided by law, shall cease. perceded. Jail, &c. to to successor. $ 69. Within ten days after the service of such certificate upon such former sheriff, he shall deliver to his successor, 1. The jail, or jails if there be more than one, of the county, with all their appurtenances, and the property of the county therein: 2. All the prisoners then confined in such jail : 3. All process, orders, rules, commitments, and all other papers or documents in his custody, authorising, or relating to the confinement of such prisoners; and if any such process shall have been returned, a statement, in writing, of the contents thereof, and when returned: 4. All writs of capias ad respondendum and other mesne process, and all precepts and other documents for the summoning of a grand or a petit jury then in his hands, which shall not have been fully executed by him: 5. All executions, attachments and final process, then in his hands, except such as the said former sheriff shall have executed, or shall (91) 1 R. L. p. 426, § 23. (92) Ib. § 22. have begun to execute, by the collection of money thereon, or by a ART. 6. levy on property, in pursuance thereof. signing and $70. At the time of such delivery, the said former sheriff shall Indenture; execute an instrument reciting the property, process, documents and receipting. prisoners delivered, specifying particularly the process or other authority by which each prisoner was committed, and is detained, and whether the same be returned or delivered to such new sheriff; which instrument shall be delivered to such new sheriff, who shall acknowledge, in writing upon a duplicate thereof, the receipt of the property, process, documents and prisoners therein specified, and shall deliver such duplicate and acknowledgment to the said former sheriff. former sheriff $71. Notwithstanding the election or appointment of a new she- Powers of riff, the former sheriff shall return in his own name all writs of capias defined. ad respondendum, all other mesne process, all attachments and all executions, which he shall have fully executed, and shall proceed and complete the execution of all final process and attachments which he shall have begun to execute, by a collection of money thereon, or by a levy on property in pursuance thereof. $72. When a sheriff shall have arrested any person upon a capias capias in ad respondendum, by virtue of which, such person shall be confined certain case. either in jail or on the liberties thereof, at the time of assigning and delivering such jail to the new sheriff, if such capias be not then returnable, the same shall be delivered to the new sheriff, and shall be returned by him at the return day thereof, with the proceedings of the former and of the new sheriff thereon. Compelling delivery of jail, &c. $73. If any former sheriff shall neglect or refuse to deliver to his successor, the jail, process, documents and prisoners in his charge, as herein required, such successor, may notwithstanding take possession of such jail, and take the custody of the prisoners therein confined, and may compel the delivery of such process and documents, in the man- 124.] ner prescribed in Article fifth of the sixth Title of Chapter fifth of the First Part of the Revised Statutes. [Vol. 1, p. vacancy in office of for met sheriff. $74. If at the time when any new sheriff shall have qualified and Duty of under given the security required by law, the office of the former sheriff shall sheriff, &c. if be executed by his under-sheriff, or by a coroner of the county, or by any other person specially authorised for that purpose, such undersheriff, coroner or other person, shall in all things comply with the preceding provisions, and shall perform the duties required of such former sheriff. ARTICLE SIXTH. Of the Duties of Sheriffs, in the Execution and Return of Szc. 75. Sheriffs to give receipts for process. 76. Copy of process served to be delivered to defendant. Receipts for process. Copy of pro cess to be 78. Offices at which certain process to be returned by sheriffs. $75. When process of any description shall be delivered to a sheriff to be executed, he shall give to the person delivering the same, if required by him, and on payment of the fee allowed by law, a minute in writing signed by such sheriff, specifying the names of the parties in such process, the general nature thereof, and the day of receiving the same." 93 $76. Every sheriff or other officer serving process, shall, upon the given defen- request of the party served, and without charging or receiving any compensation therefor, deliver to such party a copy thereof.93 dant. Liability of sheriff for not cess. $77. Every sheriff or other officer, to whom any process shall be returning pro- delivered, shall execute the same according to the command thereof, and shall make due return of his proceedings thereon, which return shall be signed by him. For any violation of this provision, such sheriff or other officer shall be liable to an action at the suit of any party aggrieved, for the damages sustained by him, in addition to any other fine, punishment or proceeding, which may be authorised by law.93 To what offices pro $78. All process issued out of the supreme court, except attachcess to be re- ments and writs of habeas corpus, shall be returned by the several sheriffs, coroners, and other officers to whom the same may have been delivered, as follows: turned. Other returns not to excuse 1. By the sheriffs and other officers of the several counties composing the first senate district, and of the several counties composing the second senate district, except the county of Delaware, to the office of the clerk of the supreme court in the city of New-York: 2. By the sheriffs and other officers of the county of Delaware, and of the several counties composing the third senate district, and of the several counties composing the fourth senate district, except the county of St. Lawrence, to the office of the clerk of the said court in the city of Albany: 3. By the sheriffs and other officers of the county of St. Lawrence, and of the several counties composing the fifth, sixth, seventh and eighth senate districts, to the office of the clerk of the said court in the town of Utica.94 $79. No return of any such process made to any other office than sheriffs, &c. that required in the last section, shall excuse any sheriff or other officer from the liabilities, penalties, fines, or proceedings prescribed by law, or by the rules and practice of the supreme court, for a neglect to make a return according to law.94 (93) 1 R. L. p. 423, § 10. (94) Laws of 1820, p. 200, § 2. |