Section 167 is omitted. In view of imposing the liability upon the sureties, by the preceding section, it is not necessary to say that an action for an escape may be maintained against the sureties.

The last sentence is a proposed re-enactment of § 168, without change.]

§ 78. Stay of proceedings upon judgment, when action is brought against sheriff.-If the party at whose instance the civil prisoner was confined, or his executor or administrator, elects to bring 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.

[Code Civ. Pro., § 170, without change, except that the words "party at whose instance the civil prisoner was confined, or his executor or administrator, elects to" are inserted in place of the words "person so entitled to bring an action on the undertaking for the jail liberties in lieu of making such election."]

§ 79. Voluntary return or recapture a defense. In an action against a sheriff or other officer, for the escape of a prisoner, it is a defense, 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.

[Code Civ. Pro., § 171, without change.]

§ 80. Effect of judgment in an action against the sheriff. If, in an action brought against the sheriff for the escape of a civil

prisoner after the delivery of an undertaking, and before its acceptance or approval, 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.

The words "after the delivery of an undertaking and before its acceptance or approval" are new. No change in result is thus effected, as under the present law the sheriff is not liable for an escape after the approval of the undertaking. The clause is inserted for the sake of clearness.1

§ 81. 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, without change.]

§ 82. Stay of judgment for sheriff against sureties. If it appears, 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 defense is established, the court must vacate the judgment, and render judgment for the defendant.

[Code Civ. Pro., § 164, without change.]

§ 83. Judgment against sheriff is evidence of damages.-In an action brought by a sheriff against the sureties 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.

[Code Civ. Pro., § 165, without change.]

§ 84. Duties of coroner, when the sheriff is a party to an action or special proceeding.-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.

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.

[Code Civ. Pro., §§ 172, 173, without change.]

§ 85. Arrest of sheriff by coroner.-Where a 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 charge.]

§ 86. Confinement of sheriff by coroner; jail liberties.-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. 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 undertaking 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. All the provisions of this article relating to actions for an escape are applicable to an escape of a sheriff when confined as a civil prisoner.

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

The first three sections are included without change. Section 178 is not re-enacted word for word. It is deemed sufficient to cover the provisions thereof by a reference to other similar provisions in this article.

§ 87. 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 u prisoner confined by the sheriff.

[Code Civ. Pro., § 179, without change.]

§ 88. 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