People ex rel. Crouse v. Cowles. flict therewith, strongly supports the argument that the prisoner, in a case like the present, if legally held at all, must be kept in close custody. Thus "all prisoners committed to jail upon process for contempt, or committed for misconduct in the cases provided by law, except on attachments for the nonpayment of costs, shall be actually confined and detained within such jail," &c. This, in the connection in which it stands, imports close confinement within the prison. But this article immediately follows, and is a part of the same title as section 40, which provides who may be admitted to the liberties of the jail, and must be construed with it. If the construction above given to section 40, and the cases cited in support of that construction are correct, then the contempt or misconduct mentioned in this section 61, describes only the cases where the process is for the punishment of a party by fine or imprisonment, or both. Notwithstanding the observations already made, I am not able to find legal warrant for the order which was made by the county judge, or for the affirmance thereof. It is unquestionably the duty of the sheriff holding a prisoner in custody, who is entitled to the liberties of the jail, to accept a proper bond with sufficient sureties, and permit such prisoner "to go at large" within the limits of such liberties, but I do not discover that a judge before whom such prisoner may be brought on habeas corpus has any power or authority to give an order or direction to that effect. The duty of the judge, on the hearing of the matter brought under examination by the habcas corpus, and the consequent proceedings, is defined in the statute already referred to. 2 R. S. 563 et seq. "If no legal cause be shown for such imprisonment or restraint, or for the continuance thereof, such court or officer shall discharge such party from the custody or restraint under which he is held" (§ 39). "It shall be the duty of such court cr officer, forthwith to remand such party" in the class of cases already above referred to (§ 40). People ex rel. Crouse v. Cowles. In cases in which a prisoner is held on a charge of crime, the officer, in certain cases, may let him to bail (§ 43). "If the party be not entitled to his discharge, and be not bailed, the court or officer shall remand him to the custody or place him under the restraint from which he was taken, if the the person under whose custody or restraint he was, be legally entitled thereto; if not so entitled, he shall be committed by such court or officer to the custody of such officer or person as by law is entitled thereto " (§ 44). Here is no warrant to the officer to take bail or security of any kind. The prisoner was not held on a charge of any crime, and the judge did not attempt to do so. But on the other hand, he did "order and adjudge that the said Marinda C. Wheeler" (the prisoner) "is not entitled to her discharge." Thereupon the peremptory direction of the statute applied, viz: "that he shall remand the prisoner to the custody, or place him under the restraint from which he was taken." The order, however, proceeds to declare-"but that she is entitled to the liberties of the jail," and next conditionally to remand, thus, "and that she be remanded to the county jail of Wayne county, unless she give good and sufficient bail, to be approved by said sheriff, for the liberties of the jail.” And the order then proceeds to direct and require the sheriff, upon the tendering of such bail, to accept the same, and declares that thereupon the prisoner shall have the jail liberties. I have not been able to discover that the officer had any jurisdiction to make such an order. Perhaps I may have overlooked some statute, or other authority, but at present I can only say, that however it might instruct the sheriff in regard to his duty, it was, as an order, wholly without jurisdiction, and inoperative; it neither bound the sheriff to admit to the liberties, nor would protect him from liability for an escape, if he admitted the prisoner to the liberties. His liability, in such case, would depend upon the question whether (independent of such an order) she was entitled to be so admitted, and not whether he acted in obedience to such an order. No such order could be enforced against the sheriff, and he was still left to act upon his own responsibility. If this court should unite in People v. Dibble. an opinion that a person committed upon such precept, and for the same cause, is entitled to the jail liberties, sheriffs might perhaps deem it safe to act accordingly, but not even this court can make a mandatory order directing them to take the bond therefor. It is said, that in truth, the prisoner, being a female, could not be arrested and held on such process, and therefore the officer should have discharged the prisoner. Code of Pro. § 179. The question is not before us. The people have not appealed from the order, and of course the appellants do not, and cannot raise it. The order which was made was, however, without warrant of law. Having adjudged that the prisoner was not entitled to her discharge, he should have remanded her without condition. On this ground, the judgment of affirmance should be reversed, but without costs. All the judges except WOODRUFF and CLERKE, JJ., were of opinion that the act charged was a contempt, and that the prisoner was not entitled to the liberties of the jail. All the judges but CLERKE, J., concurred with WOODRUFF, J., in holding that the judge had no power, on remanding the prisoner, to order the sheriff to take a bond for the liberties. Order of the general term, and of the county judge, reversed, without costs. PEOPLE v. DIBBLE. December, 1859. Affirming 4 Park. Cr. 199. On the trial of an indictment for passing a counterfeit bill,-Held, that it was not competent to prove that the prisoner, some two or three days after the alleged offense, passed two bills not shown to have been on the same bank, nor to have been actually counterfeit, one of People v. Dibble. which was returned to him as bad, and that he took it back, asserting that he took it for good money.* Louis Dibble was convicted of forgery, in passing to one Newman a counterfeit bill on the Westfield Bank. The supreme court granted a new trial, on the ground of the admission of evidence stated in the opinion of this court. BY THE COURT.-COMSTOCK, J.-The conduct of the prisoner in passing the two bills to the peddlers in exchange for rings, was no doubt suspicious. But those transactions do not appear to have any connection with the alleged offense for which he was indicted. The two bills were passed to the peddlers some two or three days after the transaction for which he was upon trial. It was not shown that the bills were of the same bank as the one in question, nor even that they were counterfeits. One of them was returned to him as bad, whether as uncurrent or as counterfeit, does not appear. He received it back, alleging that he took it for a good bill. This circumstance does not prove that it was a counterfeit, much less that the prisoner knew that such was the fact. We think, therefore, that these transactions were merely calculated to excite suspicion and prejudice against the prisoner, and had no legal bearing upon the issue which was on trial. It is true the prisoner, some three or four days before the dealing with the pedlers, said he had no money. This circumstance only suggests a doubt whether he came honestly by the bills which he is proved to have had so soon afterward; but it does not connect these bills, or the uttering of them, with the particular offense for which he was tried. We think the supreme court were right in granting a new trial. Order affirmed. * See People v. Thoms, p. 571 of this volume. People ex rel. Metcalf v. Dikeman. PEOPLE ex rel. METCALF v. DIKEMAN. December, 1868. The sureties on the official bond of the sheriff are liable (within the amount of the bond) for his failure to respond to his statutory liability, as bail, under section 201 of the Code of Procedure, for a person arrested who fails to give or justify bail.* Such liability is an official liability within the bond: and the rule of Otherwise, perhaps, where the sheriff was under no statutory liability. People v. Spraker, 18 Johns. 390. +In SMITH V. KNAPP, 30 N. Y. 581, the complaint alleged that plaintiff, on October 20, 1854, recovered judgment for one thousand and nineteen dollars and thirty-nine cents against one Reynolds. That at the commencement of the action against Reynolds, an order of arrest requiring bail in one thousand dollars was granted, and delivered to the present defendant Knapp, as sheriff, and that he by virtue of it arrested Reynolds. That on October 10, 1854, Reynolds moved the court to vacate the arrest, and the court then denied the motion. That after judgment, and on December 11, 1854, execution against property was returned unsatisfied; and about two years thereafter (December 3, 1856), execution against Reynolds' person was issued, which the defendant, as sheriff, received, and that he returned Reynolds not found. That Reynolds did not at any time render himself amenable to the execution. That being in custody of defendant, under the order of arrest, defendant [in the spring of 1855], permitted him to escape and go at large, without plaintiff's consent, and the judgment being unpaid, whereby defendant became liable as bail." Wherefore plaintiff demanded judgment for one thousand dollars. 66 The supreme court (GROVER, J., delivering the opinion), held, that the sheriff's liability, thus alleged, was that of bail, not for an escape, within section 94 of the Code; but this court, on appeal, treated the complaint as one for an escape, not on the statute liability as bail. 30 N. Y. 581. The question whether the plaintiff, whose debtor escapes from custody under an order of arrest, has an election to charge the sheriff either as bail or as for an escape, was not, however, deemed to be settled by that case; and similar complaints have been held to charge him as bail. Metcalf v. Stryker, 31 N. Y. 255. Compare Bensel v. Lynch, 44 N. Y. 162; affirming 2 Robt. 448. The question as to the limitation applicable to the action has been settled by 2 L. 1871, p. 1694, c. 733, § 2, which fixes one year as the limit for all actions against a sheriff on any liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omis |