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[S 7, 8. Same as enacted.] Original note. "The two preceding sections are taken from § 6, 1 R. L. 118, with slight alterations in substance, in a few cases. The alterations have been merely to enlarge some provisions, according to the construction given by our courts, or to embrace similar cases in the statute, so as to avoid repetition as much as possible. The attempt to class the different provisions, and rescue them from the verbiage in which they are enveloped, has been made from a conviction of its great necessity, while it is believed none have escaped which ought to be retained."

[S 9. Same as enacted.] Original note. "§ 3, 1 R. L. 118, forbids amendments in any term after that in which judgment was rendered; a provision totally and necessarily disregarded in practice. The preceding is proposed as a substitute for it."

[S 10. Same as enacted, except that the words "and prohibition," were inserted by the legislature.]

Original note. "Extended to penal actions. If such actions are to be allowed at all, it is not perceived why they should be subject to more severe rules of pleading than other actions, nor why mere technical objections to the form of proceeding in them should be encouraged. It seems incongruous to say that penal actions are necessary to enforce the laws, and yet render them as odious, complicated and difficult as possible."

"TITLE VI.-Of the powers and duties of sheriffs, coroners and other officers, in the arrest and imprisonment of persons in civil actions; in the return and execution of process; and in certain other cases."

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ARTICLE I-Of the arrest of persons on civil process."

[$ 2. Same as enacted, except that the words "while such person is in his custody," were inserted by the legislature.] Original note. "Varied by omitting the clause which allows an officer to receive what a prisoner may agree to give for such indulgences."

[S3 to 7. Same as enacted.] Original note to § 3, 5. "Same section somewhat varied."

"ARTICLE II.—Of the imprisonment of persons arrested on civil process."

[S 9 as reported; adopted with a material extension § 9 R. S.] Original note. "1 R. L., 527. § 34. It is submitted whether the time has not arrived, when the imprisonment of females should be altogether abolished, except for costs of suits wantonly brought by them. If the suggestion be approved, the following may be substituted for the preceding section:"

"§ 9. No female shall be imprisoned on any mesne process in a civil action; nor upon any execution in such action, unless the same be awarded against her for the costs of a suit brought by her, while single, in her own name."

[S 14 to 20. Same as enacted.]

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Original note. "The 18th § referred to, 1 R. L., 432, provides that the limits of the designated jail, shall be the jail of the county for whose use the designation is made. The probable consequence is, that the prisoners already on the limits of the first county, must be removed, and those afterwards committed in that county, must also go on the limits of the other. Such a consequence could not have

been intended, and to remove all doubts on the subject, the three preceding sections are proposed."

[S 21 to 27. Same as enacted.]

Original note to § 21, 22. "Ib. § 19, varied." To § 24. "Made gen$24. eral." To $ 25, 26, 27. "During the time of a great sickness in London, in 1625 and 1637,' there was much discussion respecting the disposal of the prisoners confined there. The Judge held that a habeas corpus would not justify an officer in keeping them out of prison, Cro. Ch. 14, but thought the court, by rule, might appoint some fit place as a jail, Cro. Ch., 466. It is, at least, very questionable whether such a power exists in the courts of this state. But if it does, the emergencies provided for in the three last sections, may occur when the court is not in session. All doubt on the subject should be removed, and an easy mode of removing prisoners, with safety to the public, should be provided. This has been attempted in the preceding sections."

[S 28. Same as enacted, except that the words " and in case there is more than one jail in any county, a physician to each jail," were inserted by the legislature. Original note." 24, 1 R. L., 433, extended for purposes that will be seen in the succeeding sections."

[S 29 to 32. Same as enacted.] Original note to § 30. “New; deemed necessary to give effect to the previous section."

"ARTICLE III.—Of the liberties of jails, and admitting prisoners thereto."

"S37. But in the counties of New York, Columbia, Rensselaer and Schenectady, the liberties of the jails shall not be altered, or enlarged so as to comprehend a larger space than one hundred and sixty acres." Original note. "This results from § 2, act of 1822, p. 72, and § 4, 1 R. L., 428."

[S 39. Same as enacted.]

Original note. "The object of these sections is to furnish all reasonable means of information to prisoners, so that they may not innocently expose their bail to loss.

"There are various acts extending or prescribing the jail limits of different counties, but it is believed that none exceed 500 acres in extent, except in Yates. It has been thought better, therefore, to leave them subject to the general law which enables the courts of common pleas to establish liberties not exceeding 500 acres." [S 40. Same as enacted.] Original note to sub. 3. "See 1 Caines' R., 252."

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[S 43, 44. Same as enacted.] Original note to § 43. "§ 6, 1 R. L., 429, varied to conform to subsequent sections."

[S 45. Same as § 48 R. S.] Original note. "Conformable to Barry v. Mandell, 10 J. R., 563."

[S 46. Same as § 49 R. S.] Original note. "Conformable to 6 J. R., 158; 7 do. 168, with a variation which seems necessary to allow proof of payment, release, &c."

[S 47 to 50. Same as § 50 to 53 R. S.] Original note. "These sections are intended to expedite parties, and afford relief to sheriffs, who

may have a bond with very responsible sureties who may become irresponsible during the delay incident to such causes. The cause having been once contested on the merits, there is no reason for another trial at the risk of the sheriff."

[S 51. Same as § 54 R. S.] Original note. "The first part of this section instead of § 9, 1 R. L., 430, which does not provide for all the cases; the latter part in conformity to 7 J. Rep., 163."

[S 52. Same as § 55 R. S.] Original note. "Varied in authorizing an assignment to be made by an under-sheriff, instead of the executors, &c., of the sheriff, who may have none."

[$ 53. Same as § 56 R. S.]

Original note. "§ 7, 1 R. L., 430. It is defective in prescribing the amount of the plaintiff's recovery only in one case, where the defendant was imprisoned on execution. An effort has been made in the preceding section to supply the omission. (1) Conformable to the existing statute. (2) Conformable to 1 J. R., 215; 7 J. Rep., 189. (3) 9 J. Rep., 300; 6 do., 270."

[$ 54. Same as § 57 R. S.] Original note. "Last clause of § 7, varied slightly, after making his election to prosecute for an escape before the assignment, the party could not prosecute the sheriff for any committed thereafter."

[$ 55. Same as § 58 R. S.] struction of the act that seems R., 300, &c., 10 do. 563."

Original note. "Declaratory of a conconformable to the decisions, vide 9 J.

[$ 56, 57. Same as § 59, 60 R. S.] Original note. "§ 8 confines the power of the court to cases of negligent escape, and is the same in principle with the foregoing, only that the latter defines the case with more precision."

"ARTICLE IV. Of escapes, and the liability of sheriffs therefor."

[$ 58. Same as § 61 R. S., except that the words "or committed for misconduct in the cases prescribed by law," were inserted by the legislature.] Original note. "§ 19, 1 R. L., 425, and § 21, ib. 426, varied. This section being intended to apply to those cases only, where a prisoner is required to be kept in close confinement, the expressions in § 21, 'upon mesne process, or in execution,' are omitted, as in those cases the sheriff has the right to admit a prisoner to the liberties, even without a bond, see 3 J. C. 73, and 6 J. R., 121, and of course their going at large within the liberties, is not an escape. The foregoing and the next sections, are intended to present the law as it is."

[$ 59, 60, 61. Same as § 62, 63, 64 R. S.]

Original note to § 61. " 23 varied in omitting that part which requires that the sheriff should plead and swear that the escape was made without his knowledge; for it may be made by force, or in such a way that it could not be prevented, especially from the liberties. The intent of the statute will be better satisfied by omitting that provision, while a defendant will not be tempted to an evasion under oath, of the words of the act. The section is extended also to meet the case of a voluntary return, according to 10 J. R., 549, 563."

[$ 63, 64. Same as enacted § 65, 66 R. S.] Original note. "The pecuniary penalty omitted, and the section extended to include false swearing."

"ARTICLE V.—Proceedings on the election or appointment of a new sheriff."

[$ 65, 66. Same as 67, 68 R. S.] Original note "In place of the writ of discharge provided by § 1, 1 R. L., 418, which is no longer applicable, since sheriffs have become elective."

[S 67. Same as § 69 R. S.] Original note. "Declaratory; collected from Dalton's Sheriff, p. 16, &c., Bacon's Abr. Sheriff, 1, and other authors; 7 J. R., 138."

$ 68, 69. Same as § 70, 71 R. S.] Original note to § 69. “Partly declaratory, and partly to remove doubts. The old cases contain many difficult questions on this subject, which it is the object of the above section to settle. See 2 Roll. Ab., 457, 458; Bulstrode, 70, Dalton, 70, &c."

[S 70, 71, 72. Same as § 72, 73, 74 R. S.] Original note to § 70. "To provide for a case mentioned in 7 J. R., 138." To § 71, 72. “New.” "ARTICLE VI.-Of the duties of sheriffs in the execution and return of process.”

[$ 74, 75. Same as § 77, 78 R. S.] Original note. "Law of 1820, varied to conform to existing senate districts."

"ARTICLE VII.-Proceedings in case of resistance to the execution of process."

[S 77. Same as § 80 R. S., except the words "or as many as he shall think proper," inserted by the legislature.] Original note. "§11, 1 R. L., 423, varied so as to declare the full extent of his power, as it exists."

[S 78, 79. Same as 81, 82 R. S.] Original note. "Declaratory, and which seems useful to be expressly enacted for the information of the public."

"ARTICLE VII.-Provisions concerning the duties of coroners in executing civil process, in cases where sheriffs are parties.'

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[S 86, 87, 88. Same as § 84, 85, 86 R. S.] Original note to § 86. "Declaratory." To § 88. To 88. "New. It would seem to be doubtful, from the decision of the supreme court in 6 J. Rep., 25, whether a coroner could take a bond for the liberties."

[S 89 to 93. Same as $ 87 to 91 R. S.]

Original note. "Ch. J. Kent, in 6 J. R., 25, laments the want of legislative provisions in the case of a coroner arresting a sheriff. An effort has been made in the preceding sections, to supply the deficiency. The confinement, in a private house, is not only conformable to the common law, but seems absolutely necessary, as the jail cannot be used." [S 94. Same as § 92 R. S.]

Original note. "It is conceived that there can be no danger of abuse in this case, and that it is better to use the common jail than private houses. As the sheriff has the custody of the jail, the coroner ought not, in any case, to be responsible to him for the safe keeping of a prisoner there."

[$ 95, 96, 97. Same as $ 93, 94, 95 R. S.] Original note. [S "The preceding provisions seem necessary to enable coroners to discharge their duties."

ARTICLE IX.—Provisions concerning persons committed under the authority of courts of the United States, in jails within this state."

[S 98. Same as § 96 R. S.]

Original note. "§ 8, 1 R. L., 422, varied so as to confine the pro

visions to civil process. In the Fourth Part, provisions will be made for criminal commitments by the courts of the United States. The provision about prisons in New York is rendered unnecessary, by the phraseology of the above section."

[S 99. Same as § 97 R. S.]

Original note. "§8 renders the sheriff liable for escapes, &c., in the same manner as if the commitment had been under process of our own courts. This may lead to conflicts of jurisdiction, and possibly to double suits against sheriffs. A party who is prosecuting his suit in the United States courts, ought not to be compelled to come into the state courts for redress against an officer of the court in which he sues, for neglect of duty. For if our sheriffs are to obey the process of the United States courts, they are officers of those courts, who, having jurisdiction of the main cause, ought to have it over all the incidents, and should be allowed to enforce their own process and orders. If the plaintiff be a citizen of another state, he is entitled, by the constitution of the United States, to prosecute in its courts. It seems to render the system more consistent, to leave the whole subject to the court whose process is disobeyed."

"CHAPTER VIII."

"OF PROCEEDINGS IN SPECIAL CASES."

"TITLE I-Of the bringing and maintaining of suits by poor persons." [S1, 2. Same as enacted, except that the words "when not in possession thereof," in § 2, were inserted by the legislature.] Original note. "The sum fixed by the English practice is £5 sterling. Barnes' Notes, 328. Our court has not absolutely fixed any sum, but $12.50 has usually been adopted. Vide 1 Dunlap, 85."

[S 3. Same as enacted.] Original note. "The words 'and that the applicant has a meritorious cause of action,' new." IS 4. Same as enacted.]

Original note. "Same action, extended so as to allow such prosecutions, although the costs of a former suit remain unpaid. The whole policy of the law seems defeated by the rule of the English courts, 2 Term Rep., 511, requiring the payment of those costs by a person utterly unable to pay anything. The danger of abuse by vexatious suits, it is supposed will be prevented, by a provision in § 3, requiring the court to be satisfied that the cause of action is meritorious."

[$ 5, 6. Same as enacted.] Original note to § 5. "New in form, according to practice."

"TITLE II.-Proceedings by and against infants."

[S 1. Same as enacted.] Original note. "1 R. L., 87, extended to all actions."

[S 2. Same as enacted.] Original note. "1 R. L., 416, § 2, latter part, extended so as to require the appointment before an irresponsible infant shall be permitted to harass a defendant, by obtaining process against him. That the next friend is liable for the costs, see Willes' Rep., p. 190."

[S 4, 5. Same as enacted, except that the words "if required by the

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