[After stating the facts as above.]—This action is one which is entirely technical in its character, and is a right given expressly by statute. The theory under which the statute proceeds is that within ten days after the certificate of election by an incoming sheriff is served by the outgoing sheriff, all powers of the outgoing sheriff cease and determine, with the exception of completing the execution of process partially executed. It necessarily follows that the power -of the outgoing sheriff to retain in his custody, or to arrest any prisoners by virtue of any process, terminates after the ten days have expired from the service of the said certificate. Therefore, as to the prisoners who have not been actually transferred to the new sheriff, there is no officer who has the right to restrain them of their liberty, and they are in the eye of the law at large. The new sheriff has no control over the prisoner, because he has never been transferred to him. The old sheriff cannot restrain the prisoner of his liberty, because after the ten days the old sheriff has lost all the powers appertaining to his office.
The plaintiff, in his complaint in this action, has alleged that because within ten days after the service of the certificate of the election of the new sheriff, the old sheriff has failed to transfer the prisoner, he has a right under the statute to main tain this action. The evidence entirely fails to .establish this cause of action, because no certificate has ever been served by *525the incoming sheriff upon the outgoing sheriff. It is to be observed that the sheriff is not bound to confine at all, prisoners taken upon execution, and that he has a right to allow a prisoner taken upon execution the limits, without any bond, and all the liability that he incurs is that the prisoner shall not leave, the jail limits. It would be no escape if the sheriff should confine a prisoner elsewhere than in the jail, as long as he was within the jail limits, or that he had allowed him to go upon the limits without a bond; and he would be just as much in either of those cases in the custody of the sheriff, as though he was actually confined within the four walls of the jail. As a consequence, the fact that the prisoner is not found within the four walls of the jail at the time of this transfer by the outgoing sheriff to the incoming sheriff, is no evidence whatever of an escape. Therefore, the facts proven upon the trial of this cause do not show that there has been an escape, or that the authority of' the outgoing sheriff, as to any prisoners upon the limits, has ceased and determined by reason of the service of the certificate required by law.
In the case of Hempstead v. Weed (20 Johns. 73), the right of the old sheriff to retain the custody of prisoners not turned over to his successor is expressly recognized. It is true that that case was decided prior to the revision of the statutes, but there is little difference in principle between the certificate of discharge and the service of the notice before mentioned; the only difference between the two cases being that in the one case the outgoing sheriff is the actor, and in the other case the incoming sheriff performs the duty. In the case of Smallman v. Lanes (2 Leonard, 54) it was expressly held that there could be no escape so long as the prisoner was in actual custody, and not at large ; and it was said by one of the justices that it is an escape in the old sheriff as soon as his authority is determined, and the prisoner not delivered.
In the case at bar there has been no action taken which has terminated the authority of the outgoing sheriff. In the case of Partridge v. Westervelt (13 Wend. 504), the same principle is recognized, because in that case it is said that the common law considered the prisoners in the custody of the old sheriff *526until assigned to the new, and the Revised Statutes retain the same principle.
In the case of Hinds v. Doubleday (21 Wend. 227), it is expressly stated that the powers of the old sheriff in relation to all prisoners in his custody do not determine with the termination of his term of office, but cease only within ten days after the service of a certificate that the new sheriff had entered upon the duties of his office. _ It would, therefore, seem to be established, both by statute and authority, that until the certificate is served by the incoming sheriff upon the outgoing sheriff, the powers of the outgoing-sheriff as to prisoners in his custody remain unchanged; and the fact that he has turned over some prisoners to tire incoming sheriff does not affect his powers as to the custody of prisoners not transferred; this is expressly recognized in the case of Smallman v. Lanes (supra).
I think, therefore, that the judgment of the court below was entirely right, and that no action could be maintained upon the facts established upon the trial of this action.
The judgment must, therefore, be affirmed, with costs.
Charles P. Daly, Ch. J., and Van Brunt, J., concurred.
Judgment affirmed, with costs.