#### Matilda G. Tinker, Plaintiff, *v.*The City Trust, Safe Deposit *&*Surety Company of Philadelphia, Defendant.

(Supreme Court, New York Special Term,

March, 1899.)

Bail for jail limits —After six months a surety must return property taken as security. <

Where an imprisoned judgment debtor is within the jail limits at the expiration of six months from the time of his arrest, the longest period of imprisonment permissible under section 111 of the Code of Civil Procedure, and no action is then pending against the sheriff for an escape, a surety upon the bail bond for jail liberties must reconvey to a person property which she conveyed to the surety as security against its liability upon the bond.

The provisions of section 385 of the same Code, fixing a limit of one year for an action against a sheriff do not apply to such a state of facts nor afford any defense to the surety.

*24Action to compel the defendant company the surety upon a bail bond to reconvey.to plaintiff property conveyed to it to be held as security against its liability upon such bond.

Nelson Smith, for plaintiff.

Dayton & Swift, for defendant.

Bookstaver, J.

This is an action to compel the defendant company, the surety upon a bail bond, ,to reconvey to the plaintiff property conveyed to it by her to be held as security against - its liability upon such bond.

It is conceded that the judgment debtor was arrested on July 12, 1897. The statute (section 111 of the Code of Civil Procedure) permits imprisonment within the jail limits of any jail for a period of only six months. That period expired on the 12th day cf January, 1898, on which date it is undisputed that the prisoner was within the limits and that no action was then pending against the sheriff for an escape.

The defendant takes the position that, under section 385 of the Code of Civil Procedure, which prescribes a limitation of one year for “ an action against a sheriff or coroner, upon a liability .incurred by him, by doing an act in his official capacity,- or by the omission of an official duty,” it could not be determined that there would be no. liability upon the bail bond until the year so prescribed should have passed without action begun against the sheriff.

This argument loses- sight of the fact that on the -last day of the period of six months the prisoner was within the limits and the rule of law that, where an escape has been made by a prisoner through the negligence of the sheriff, the return of the prisoner before suit brought constitutes a defense to the sheriff (Cortis v. Dailey, 21 App. Div. 1; Littlefield v. Brown, 1 Wend. 398; Lansing v. Fleet, 2 Johns. Cas. 3), and therefore, of course, to his indemnitor.

If, on the other hand, an escape took place with the sheriff’s consent, the result is the same, so far as the indemnitor is concerned. In that case, it is true,, the default of the sheriff is not purged by the return of the prisoner, but the sheriff’s consent to the escape discharges both principal and siireties on the bond given by them for the jail liberties. Buttling v. Hatton, 18 App. Div. 128; Wemple v. Glavin, 5 Abb. N. C. 360.

It is wholly immaterial, therefore, whether any escape was made ór not, because, if made, and - whether voluntary or negligent on *25the sheriff’s part, there could, in neither case, he any liability against the defendant, and the defense to the action was unwar- . ranted.

Judgment for plaintiff, with costs and $100 extra allowance..