§ 162. Summary judgment for sheriff. In an action brought by a sheriff on a bond 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 judg ment for the plaintiff; and judgment must be entered accordingly, with costs. 2 R. S. 435, 50. § 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. Id., 51. § 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. Id., 52 and 53, am'd. § 165. Judgment against sheriff is evidence of damages. In an action brought by a sheriff on a bond 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 defeuding the action against him, as part of his damages. Id., 54. § 166. Assignment of bond. If a bond for the jail liberties is forfeited, the party at whose instance the prisoner was confined, or, in case of his death, his executor or administrator, is entitled to an assignment thereof; which must be executed by the sheriff who took the bond, or, in case of a vacancy in his office, by his under-sheriff, and acknowledged or proved, and certified, in like manner as a deed to be recorded in the county. 2 R. S. 435, 55. Skinner. Fleet, 14 Johns. 263; Morton v. Campbell, 14 Abb. 410; s. c., 37 Barb. 179. § 167. Action on bond by assignee; damages recoverable. The person to whom such an assignment has been made, may maintain an action on the bond, as assignee of the sheriff taking the same, in a case 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. $168. Such assignment bars action against sheriff.The acceptance of an assignment of such a bond, is a bar to an action, by or in behalf of the assignee, against the sheriff or other officer making the same, for an escape by the prisoner executing the bond, amounting to a breach of the condition thereof, unless the escape was with the assent of the sheriff or other officer. Id., 57. 169. Defence in action by assignee. — In an action brought by the assignee of the bond, the defendant may make any defence, which he might make, if the action was brought in the name and for the benefit of the sheriff. Id: 138. -- 170. Stay of proceedings where assignment is not taken. If the person entitled to an assignment of a bond for the jail liberties, in lieu of taking the same, brings an action against the sheriff for the escape, the con 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 bond, and collect a judgment recovered thereon. Id., 59 and 60. Matter of Chamberlain, 42 Barb. 281; s. c., 18 Abb. 104; 28 How. 2. § 171. Defense 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 B. S. 425, 64. McCreery v. Willett, 22 How. 91; Stone v. Woods, 5 Johns. 182; Bank v. Deyo, 6 Cow. 732; Lockwood v. Mercereau, 6 Abb. 206. TITLE III. Application of the foregoing provisions to the proceedings of a coroner. SEC. 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 Jall. 177. Sheriff to be admitted to Jail liberties; liability of coroner for sheriff's escape. 178. Coroner may prosecute, etc., bond for 1lberties. 179. Duties of coroner where sheriff is plaintiff. 180. Such prisoner entitled to Jall 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. 2 R. S. 441,84 (3 R. S., 5th ed., 741; 2 Edm. 460). Mills v. Young, 23 Wend. 314; Carpenter v. Stilwell, 11 N. Y. 61; Slater. Wood, 9 Bosw. 15. 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. Id., part of 84, and 85. $174. 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 a bond for the jail liberties, to himself, in his name of office, in a like case, and in like manner, and with like effect, as where such a bond or undertaking may be taken by a sheriff. 2 K. S. 441, 286. $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. Id., 7. Day v. Brett, 6 Johns. 22. §176. Place of confinement to be deemed a jail. 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. Id., 88 and 89. § 177. 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 bond 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. Id., 190. Day v. Brett, 6 Johns. 22. § 178. Coroner may prosecute, etc., bond for liberties.-The coroner may prosecute a bond 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 bond taken by a sheriff. The bond 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 a bond taken and assigned by a sheriff, in a similar case. 2 R. S. 441, 91. § 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. Id., 92. and part of 93. 180. 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 a bond or 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 bond or 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. Id., part of 93, and 94. § 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. Id., 95. TITLE IV. Powers, duties, and liabilities of an incoming and outgoing sheriff, respectively, touching the matters in cluded in this chapter. SEO. 182. Certificate to be furnished to new sheriff. 183. Powers of former sheriff; when to cease. 184. Jail, process, etc., to be delivered to new sheriff. 185. Former sheriff to execute instrument. 186. Former sheriff to execute certain process. |