¶1We are not aware of any precedent for such a rule, though there must have been frequent occasion for it. The uniform course, in relation to those summary applications, has been to trust to voluntary affidavits; and the want of a power to coerce them has often been urged *in argument, without contradiction, as a defect in this kind of proceeding. We do not think that we have power to make the rule applied for.
¶2Motion for perpetual stay, &c., granted.
¶3 The only means, therefore, under the present practice, to coerce evi-
¶4*516deuce on a non-enoneratecl matter, would seem to be, to apply to the court for a feigned issue; on the trial of which the witness may be compelled to attend upon subpoena.
¶5Under the N. Y. Code, within three years : “ An action against a sherif^ coroner, or constable, upon the liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty; including the non-payment of money collected upon an execution, But this section shall not apply to an action for an escape. An action upon a statute, for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the people of this state, except where the statute imposing it prescribes a different limitation.” (N. Y. Code, ch. 3, sec. 72.)