By the Court,
Bronson, J.
Under the former law, a writ of discharge was delivered to the old sheriff, commanding him that by indenture he deliver to'his successor, “ the county, with the appurtenances, together with the. rolls, writs, memorandums, and all other things touching that office which are in his custodyand thereupon the office of the old sheriff was at an end. 1 R. L. 418, § 1, 4, 5. Notwithstanding the imperative language of the writ, it was said in Hempstead v. Weed, 20 Johns. R. 64, that the right of the old sheriff to turn over his prisoners on civil executions to .his successor, was for his own safety and security ; that the rule was introduced for his benefit, and he might, if he pleased, waive" the advantage of it. It was accordingly 'held, [227]*227that the old sheriff was not chargeable with an escape, when on going out of office, he had by mistake neglected to assign to his successor one of the prisoners on the jail limits; but that the prisoner still remained in his custody, on the principle that when the sheriff has commenced the execution of final process, he may complete it after his office is at ah end. In Partridge v. Westervelt, 13 Wendell, 500, it was decided, that a prisoner on the jail limits, who had not been assigned to the new sheriff, was not in the custody of the new sheriff, and consequently that he was not charge * able for an escape of the prisoner, although it happened in his time; but that the remedy of the creditor was against the old sheriff, who could not plead his failure to perform his duty as an excuse. In this case, the 'late chief justice expressed the opinion, that the turning over of prisoners was no longer a privilege which the old sheriff could waive, but that it was now his duty to assign them.
The language of the present statute is certainly imperative in its form—the former sheriff shall deliver to his successor the jail and the prisoners. 2 R. S. 438, § 69. Although this language may not be stronger than that. in the former writ of discharge, I think it not only confers a benefit, but imposes a duty on the old sheriff; and I am not prepared to say that he can sue for 'an escape, where he is driven to the necessity of alleging his own breach of duty by way of'making title to the action. But if there can be a good excuse for not assigning, as that a particular prisoner was omitted by mistake, the sheriff should show the excuse.
But the difficulty presents itself in another form. Although under the old law, the sheriff, when he had commenced the execution of final process, might complete it after his office was at an end, and although he may do so still in relation to executions against property, yet he cannot, I think, do so where the final process is against the body of the, debtor. A certificate from the county clerk, that the new sheriff has qualified and given security, has taken the place of the old writ of discharge. 2 R. S. 438, § 67. Upon service of the certificate on the former sheriff, * the [228]*228statute declares, that “his powers as such sheriff, except when otherwise expressly provided by law, shall cease;” (§ 68); and I find no provision which will authorizé him. to continue the execution of process on which any person is in his custody as a prisoner. The exception in the last clause of the 69th section, and the power to, proceed, given by the 71st section, are both evidently confined to final process against the property, not the person, of the debtor. And besides, it is made the duty of the sheriff to deliver to his successor, the jail of the county, with its appurtenances, all - the prisoners then confined in stich jail, and all process, orders, &'c. in his custody, authorizing or relating to the confinement of such prisoners. § 69. ' On reading the 68th, 69th and 71st sections together, I am unable to resist the conclusion, that the legislature intended the powers of the old sheriff in relation to all prisoners in'his custody should cease within ten days after the service of a certificate that the new sheriff had entered upon the duties of his office. If the common law power of the old sheriff to continue the execution of final process against the body is taken away by this statute, as I think it is, prisoners who are not assigned within the ten days will be at liberty to go at large. The new sheriff has nothing to dó with them, and the power of the old sheriff is at-an end. If he cannot enforce the imprisonment by direct means,’he cannot do it indirectly, by suing the bond which was given while the restraint was legal.
■ It remains to apply what has been said, to the questions presented on the third, sixth and seventh pleas.
1; The third plea is not broad enough to constitute a bar. The allegation is, that McIntosh remaining a true and faithful prisoner “ during the period when the plaintiff continued in office as such sheriff, and until a successor was appointed in his place.” The plaintiff was not in office as sheriff after the certificate was served by the new incumbent '; still' his power -.over , the prisoners necessarily remained for' ten days afterwards, if they were not sooner assigned. The plea, therefore, comes short- of showing that McIntosh was [229]*229not in the plaintiff’s custody at the time of the escape. The second branch of the plea is subject to the same objection.
•2. The sixth plea states in substance, that before the escape, the plaintiff had been served with the certificate required by the statute; and that within ten days thereafter, and before the escape, the plaintiff delivered the jail and all the prisoners, including McIntosh, to Stoddard, the new sheriff. This is a good bar. After the plaintiff had delivered the jail and the prisoner, it is obvious that he could have no further authority over hint. The new sheriff was then answerable for the safe keeping of the prisoner. The replication is, that McIntosh was npt assigned. . It was the plaintiff’s duty to deliver over all the prisoners, and whether he did so or not, his power of restraining them could not continue beyond the tell days-. Whether there can be a good excuse for omitting the transfer, need not now be considered, for no excuse whatever is set Up by the plaintiff.
The seventh plea contains the same matter as the sixth, and there is only one replication to both. The replication is of course equally bad as to both pleas. The additional matter in the seventh plea—that the creditors of McIntosh treated him as in custody of the new sheriff and sued and recovered a judgment against- the new sheriff for the same escape of which the plaintiff.complains, amounts to nothing. If McIntosh was in the plaintiff’s custody at the time of the escape, the plaintiff has a right of action against the bail, and if the new • sheriff has suffered a judgment which he might have avoided, that cannot prejudice the plaintiff.. But this additional matter is surplusage merely, and can do no harm. The plea! contains enough without it, and the replication does not give á sufficient answer.
3. The fourth plea sets up a voluntary return by McIntosh to the jail liberties, before any suit was commenced against the plaintiff. The plea which the statute authorizes would be, a voluntary return of the prisoner before suit brought against the hail, on their bond to the sheriff. 2 R. S. 435,- 48.
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By the Court,
Bronson, J.
Under the former law, a writ of discharge was delivered to the old sheriff, commanding him that by indenture he deliver to'his successor, “ the county, with the appurtenances, together with the. rolls, writs, memorandums, and all other things touching that office which are in his custodyand thereupon the office of the old sheriff was at an end. 1 R. L. 418, § 1, 4, 5. Notwithstanding the imperative language of the writ, it was said in Hempstead v. Weed, 20 Johns. R. 64, that the right of the old sheriff to turn over his prisoners on civil executions to .his successor, was for his own safety and security ; that the rule was introduced for his benefit, and he might, if he pleased, waive" the advantage of it. It was accordingly 'held, [227]*227that the old sheriff was not chargeable with an escape, when on going out of office, he had by mistake neglected to assign to his successor one of the prisoners on the jail limits; but that the prisoner still remained in his custody, on the principle that when the sheriff has commenced the execution of final process, he may complete it after his office is at ah end. In Partridge v. Westervelt, 13 Wendell, 500, it was decided, that a prisoner on the jail limits, who had not been assigned to the new sheriff, was not in the custody of the new sheriff, and consequently that he was not charge * able for an escape of the prisoner, although it happened in his time; but that the remedy of the creditor was against the old sheriff, who could not plead his failure to perform his duty as an excuse. In this case, the 'late chief justice expressed the opinion, that the turning over of prisoners was no longer a privilege which the old sheriff could waive, but that it was now his duty to assign them.
The language of the present statute is certainly imperative in its form—the former sheriff shall deliver to his successor the jail and the prisoners. 2 R. S. 438, § 69. Although this language may not be stronger than that. in the former writ of discharge, I think it not only confers a benefit, but imposes a duty on the old sheriff; and I am not prepared to say that he can sue for 'an escape, where he is driven to the necessity of alleging his own breach of duty by way of'making title to the action. But if there can be a good excuse for not assigning, as that a particular prisoner was omitted by mistake, the sheriff should show the excuse.
But the difficulty presents itself in another form. Although under the old law, the sheriff, when he had commenced the execution of final process, might complete it after his office was at an end, and although he may do so still in relation to executions against property, yet he cannot, I think, do so where the final process is against the body of the, debtor. A certificate from the county clerk, that the new sheriff has qualified and given security, has taken the place of the old writ of discharge. 2 R. S. 438, § 67. Upon service of the certificate on the former sheriff, * the [228]*228statute declares, that “his powers as such sheriff, except when otherwise expressly provided by law, shall cease;” (§ 68); and I find no provision which will authorizé him. to continue the execution of process on which any person is in his custody as a prisoner. The exception in the last clause of the 69th section, and the power to, proceed, given by the 71st section, are both evidently confined to final process against the property, not the person, of the debtor. And besides, it is made the duty of the sheriff to deliver to his successor, the jail of the county, with its appurtenances, all - the prisoners then confined in stich jail, and all process, orders, &'c. in his custody, authorizing or relating to the confinement of such prisoners. § 69. ' On reading the 68th, 69th and 71st sections together, I am unable to resist the conclusion, that the legislature intended the powers of the old sheriff in relation to all prisoners in'his custody should cease within ten days after the service of a certificate that the new sheriff had entered upon the duties of his office. If the common law power of the old sheriff to continue the execution of final process against the body is taken away by this statute, as I think it is, prisoners who are not assigned within the ten days will be at liberty to go at large. The new sheriff has nothing to dó with them, and the power of the old sheriff is at-an end. If he cannot enforce the imprisonment by direct means,’he cannot do it indirectly, by suing the bond which was given while the restraint was legal.
■ It remains to apply what has been said, to the questions presented on the third, sixth and seventh pleas.
1; The third plea is not broad enough to constitute a bar. The allegation is, that McIntosh remaining a true and faithful prisoner “ during the period when the plaintiff continued in office as such sheriff, and until a successor was appointed in his place.” The plaintiff was not in office as sheriff after the certificate was served by the new incumbent '; still' his power -.over , the prisoners necessarily remained for' ten days afterwards, if they were not sooner assigned. The plea, therefore, comes short- of showing that McIntosh was [229]*229not in the plaintiff’s custody at the time of the escape. The second branch of the plea is subject to the same objection.
•2. The sixth plea states in substance, that before the escape, the plaintiff had been served with the certificate required by the statute; and that within ten days thereafter, and before the escape, the plaintiff delivered the jail and all the prisoners, including McIntosh, to Stoddard, the new sheriff. This is a good bar. After the plaintiff had delivered the jail and the prisoner, it is obvious that he could have no further authority over hint. The new sheriff was then answerable for the safe keeping of the prisoner. The replication is, that McIntosh was npt assigned. . It was the plaintiff’s duty to deliver over all the prisoners, and whether he did so or not, his power of restraining them could not continue beyond the tell days-. Whether there can be a good excuse for omitting the transfer, need not now be considered, for no excuse whatever is set Up by the plaintiff.
The seventh plea contains the same matter as the sixth, and there is only one replication to both. The replication is of course equally bad as to both pleas. The additional matter in the seventh plea—that the creditors of McIntosh treated him as in custody of the new sheriff and sued and recovered a judgment against- the new sheriff for the same escape of which the plaintiff.complains, amounts to nothing. If McIntosh was in the plaintiff’s custody at the time of the escape, the plaintiff has a right of action against the bail, and if the new • sheriff has suffered a judgment which he might have avoided, that cannot prejudice the plaintiff.. But this additional matter is surplusage merely, and can do no harm. The plea! contains enough without it, and the replication does not give á sufficient answer.
3. The fourth plea sets up a voluntary return by McIntosh to the jail liberties, before any suit was commenced against the plaintiff. The plea which the statute authorizes would be, a voluntary return of the prisoner before suit brought against the hail, on their bond to the sheriff. 2 R. S. 435,- 48. This seption has turned the cáse of Barry v. Mandell, 10 Johns. R. 563, into statute law. The plea is quite wide of the mark.
[230]*230.But is said that the bond is one of indemnity j and that if there was a return before suit brought against the plaintiff, he cannot have been damnified. This is not strictly a bond ■ of indemnity. When the prisoner escaped, the sheriff was not bound to wait until he was sued, but might immediately take his remedy for a breach' of. the condition of the bond; and besides, the sheriff is liable to the creditor the moment the escape takes place. He need not wait for an action, but may discharge his liability": without it. It does not follow, • therefore, that the plaintiff, has not been damnified, because he has not been sued. The plea cannot be maintained. ;
4. By the fifth plea the' defendants have attempted to avail themselves of the short limitation which the statute . has given to the sheriff in actions against him for escapes on civil process. 2 R. S. 296, § 21. There is. no such : limitation in favor of the bail. So far as the plea rests on . the assumption that this- is only a bond of indemnity, it is . sufficiently answered in what has been said concerning the fourth plea.
The result is, that the plaintiff is entitled to judgment on. ■ the third, fourth and fifth pleas; and the defendants are entitled to judgment on the sixth and seventh pleas. ■