§ 196. (Am'd 1849.) Allowance of bail.

If the judge, or justice of the peace, find the bail sufficient, he shall annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk; and the sheriff shall thereupon be exonerated from liability.

a. The justification of bail has been set aside on motion, under circumstances of gross imposition and fraud on the part of the bail (1 Chitt. R. 143, 372; but see 1 Bing. 365; 2 Dowl. P. C. 438). A rejection of one of the bail is a rejection of all or both (5 B. & A. 704), unless further time be given to justify another bail instead of the one rejected (1 Arch. Pr. 113). Formerly, a defendant might appeal from a decision rejecting bail. It is supposed there is no appeal now.

b. Justification of bail is not complete until the judge has indorsed his allowance on the undertaking, and filed it with the clerk (O'Neil v. Durkee, 12 How. 94; Overill v. Durkee, 2 Abb. 383).

$197. Deposit with the sheriff.

The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff the amount mentioned in the order. The sheriff shall thereupon give the defendant a certifiate of the deposit, and the defendant shall be discharged out of custody.

198. (Am'd 1849.) Payment of deposit into court.

The sheriff shall, within four days after the deposit, pay the same into court; and shall take from the officer receiving the same two certificates of such payment, the one of which he shall deliver to the plaintiff, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the sheriff to collect the sum deposited as in other cases of delinquency.

§ 199. (Am'd 1849.) Substituting bail for deposit.

If money be deposited, as provided in the last two sections, bail may be given and justified upon notice, as prescribed in section 193, any time before judgment; and thereupon the judge before whom the justification is had, shall direct, in the order of allowance, that the money deposited be refunded by the sheriff to the defendant, and it shall be refunded accordingly.

c. A motion to refund money cannot be made until after bail have justified. The court is authorized to refund the money to the defendant alone (Herrmann v. Aaronson, 3 Abb. N. S. 389; 34 How. 272).

$ 200. (Am'd 1849.) Deposit, how disposed of.

Where money shall have been so deposited, if it remain on deposit, at the time of an order or judgment for the payment of money to the plaintiff, the clerk shall, under the direction of the court, apply the same in satisfaction thereof, and after satisfying the judgment, shall refund the surplus, if any, to the defendant. If the judgment be in favor of the defendant, the clerk shall refund to him the whole sum deposited and remaining unapplied.

a. The defendant, having been arrested and held to bail in the sum of $500, deposited that amount with the sheriff, and afterwards, having given bail, obtained an order that the deposit be repaid him. Before the deposit had been repaid, the plaintiff commenced a second action against the same defendant, and issued an attachment, which he levied upon the deposit. A third party, upon affidavits stating that the money was his money, not that of the defendant, and advanced by him for the deposit until bail could be found, applied, by the defendant's attorney, for an order that the money be paid over to the defendant's attorney for him,-held, that the money, by being deposited, became the property of the defendant, and was liable to the attachment, and that the application must be denied (Salter v. Weiner, 6 Abb. 191). [It is said that this decision was reversed on appeal. Ed.]

b. Money paid into court is at the risk of the depositor, see Parsons v. Travis, 5 Duer, 650; DePeyster v. Clarkson, 2 Wend. 77; Hopk. 505.

$201. (Am'd 1849.) Sheriff, when liable as bail.

If, after being arrested, the defendant escape or be rescued, or bail be not given or justified, or a deposit be not made instead thereof, the sheriff shall himself be liable as bail. But he may discharge himself from such liability, by the giving and justification of bail, as provided in sections 193, 194, 195, and 196, at any time before process against the person of the defendant, to enforce an order or judgment in the action.

c. Where the bail given for a defendant, upon his arrest, are excepted to, and do not justify, and no other bail are given, nor a deposit made, the sheriff himself becomes liable as bail (Buckman v. Carnley, 9 How. 180; see Decker v. Anderson, 39 Barb. 347). He may, at any time before process against the person of the defendant is issued, discharge himself from such liability by the giving and justification of bail, but not after such process (ib.) But the sheriff, although his liability as bail is fixed by return of [an execution in the nature of a ca. sa. not found, is only liable as bail, and he has the same right to relief within twenty days after action brought against him as is given to bail by § 191 (id.), and he is entitled to the same right and powers as bail. He may, therefore, as bail, arrest the defendant and surrender him in the action; and for this no process is necessary (Sartos v. Merceques, 9 How. 188).

d. An action against a sheriff on his liability as bail under this section is not an action for neglect of official duty. The damages are the amount of the judgment, and cannot be reduced by evidence of the insolvency of the judgment debtor (Metcalf v. Stryker, 10 Abb. 12; 31 Barb. 62; Gallarati v. Orser, 4 Bosw. 94; Bensel v. Lynch, 2 Rob. 448; Levy v. Nicholas, 19 Abb. 282; Willett v. Lasalle, id. 272). It is otherwise where the action is for an escape (Daguerre v. Orser, 10 Abb. 12, note).

a. The court will not order a sheriff to take bail for the jail liberties, nor to pass upon the sufficiency of such bail (ib.)

See note to sections 185, 188, 189, 191.

§ 202. Proceedings on judgment against sheriff.

If a judgment be recovered against the sheriff upon his liabil ity as bail, and an execution thereon be returned unsatisfied in whole or in part, the same proceedings may be had on the official bond of the sheriff, to collect the deficiency, as in other cases of delinquency.

§ 203. (Am'd 1849.) Bail liable to sheriff.

The bail taken upon the arrest, shall, unless they justify, or other bail be given or justified, be liable to the sheriff by action for damages which he may sustain by reason of such omission.

b. The sheriff has no right of action under this section against bail who fail to justify, until he has sustained damage by reason of the liability as bail which the law imposes upon him, as a consequence of a failure to justify or put in other bail (Clapp v. Schutt, 44 Barb. 9; 19 Abb. 121; 29 How. 255).

§ 204. (Am'd 1858.) Vacating order of arrest, or reducing bail.

A defendant arrested may, at any time before judgment, apply, on motion, to vacate the order of arrest, or to reduce the amount of bail.

c. The motion to vacate need not necessarily be made to the judge who granted the order (Dunaher v. Meyer, 1 Code Rep. 87). If made to the judge who granted the order, it may be made ex parte, and at chambers, but if made to any other judge, it must be on notice, in the same manner in which other motions are made, and cannot be made at chambers (Cayuga B'k v. Warfield, 13 How. 439; Rogers v. McElhone, 12 Abb. 292; 20 How. 441). A county judge has no power to vacate an order of arrest (Rodgers v. McElhone, 12 Abb. 292; 20 How. 441).

d. A motion to vacate an order of arrest may be made at any time before judgment, notwithstanding the defendant has given and perfected bail (Wicks v. Harmon, 12 Abb. 476; Warren v. Wendell, 13 Abb. 187; Col. Ins. Co. v. Force, 8 How. 353; Cady v. Edmonds, 12 id. 197); and obtained time to answer (id.); but the motion cannot be made after judgment (Barker v. Wheeler, 23 How. 193; Roberts v. Carter, 17 How. 279; 9 Abb. 106, note; Crowell v. Brown, 9 Abb. 107, note; and section 183, ante).

e. By putting in bail, defendant waives all technical defects in the affidavit on which the order was obtained (15 Barb. 26; Dale v. Radcliffe, 15 How. 71; 25 Barb. 333; Ballouhey v. Cudot, 3 Abb. N. S. 122.)

See note to sections 183 and 205.

$ 205. Affidavits on motion.

If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same

by affidavits, or other proofs, in addition to those on which the order of arrest was made.

a. Affidavits.-The motion may be made without affidavits on the part of the defendant, that is, upon the plaintiff's own showing (Geller v. Seixas, 4 Abb. 104; Baker v. Swachamer, 3 Code Rep. 248; 5 How. 251); in which case. the sole question is whether the affidavits of the plaintiff authorize the granting the order (Martin v. Vanderlip, 3 How. 265); or upon the affidavit of the defendant or others (Corwin v. Freeland, 6 N. Y. 565). In such a case the plaintiff may, to sustain the order and resist the motion, introduce additional affidavits and show contemporaneous frauds by the defendant (Scott v. Williams, 23 How. 393). The evidence of contemporaneous frauds must be legal evidence (Stewart v. Potter, 37 How. 68).

b. A defendant who moves upon the plaintiff's affidavits to vacate an order of arrest, admits those affidavits to be true (Lovell v. Martin, 21 How. 238; Hathorn v. Hall, 4 Abb. 227), although the allegations they contain may be made on information and belief only (Wolfe v. Brower, 5 Rob. 602). And where the defendant moves on the plaintiff's affidavits, and affidavits in response thereto, he so far adopts the plaintiff's affidavits as to waive the right to object to them for being erroneously entitled (City B’k v. Lumley, 28 How. 397).

c. On a motion to discharge from arrest on the ground that the debt has been barred by a discharge in bankruptcy or insolvency, the court may examine the validity of the discharge. If the discharge is found to be valid, the order of arrest should be vacated (Amer. Flask Co. v. Son, 3 Abb. N. S. 333; 7 Rob. 233).

d. If the action is one in which the plaintiff cannot be arrested, and he has given bail, his proper remedy is to move to vacate the order of arrest, and not move for an exoneratur and the discharge of his bail (Holbrook v. Homer, 6 How. 86).

e. Where the right to arrest is derived from the nature of the action, the defendant will not be allowed to introduce affidavits to show that there is no cause of action; for that would be trying the merits of the action by affidavits (Solomon v. Wass, 2 Hilton, 179). But the Code, even in such a case, permits a partial trial of a cause on motion to vacate (Corwin v. Freeland, 6 N. Y. 565). And where the facts constituting the cause of action and the facts authorizing the arrest are identical, the order of arrest will not be set aside on the merits, unless the defendant clearly makes out such a case as would call on the judge at the trial either to nonsuit the plaintiff, or direct a verdict for the defendant (Levis v. Noble, 15 Abb. 475; Barrett v. Gracie, 34 Barb. 20; and see Cousland v. Davis, 4 Bosw. 619; Lorillard Ins. Co. v. Meshural, 7 Rob. 308). In Mecklin v. Berry (23 How. 380), the order of arrest was vacated, on the ground that the balance of proof, as to whether or not there was fraud, was in favor of the defendants. When the arrest is founded upon extrinsic facts, wholly independent of the cause of action, as where the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors, then the defendant may contest the truth of the facts upon which the arrest was ordered; and if he satisfies the court, either by his own affidavit or otherwise, that there is no foundation for the arrest, he is entitled to be discharged (Geller v. Seixas, 4 Abb. 104; Bedell v. Sturta, 1 Bosw. 634; 6 Abb. 319, n.; Coope v. Wells, 6 Abb. 540; Falconer v. Elias, 1 Code Rep. N. S. 155; Corwin v. Freeland, 6 N. Y. 565). A denial by the debtor of the facts sworn to on the part of the plaintiff is not sufficient to vacate an order of arrest; there must be a preponderance of evidence (Phillips v. Benedict, 20 How. 265; see Allen v. McCrasson, 32 Barb. 662; Brodsky v. Ihms, 25 How. 471; 16 Abb. 251). On such motion the question is, whether, upon the whole case, as made by the affidavits on both sides, the court, if called upon to act upon the application as res nova, would grant the order of

But if,

arrest. If it would, then the motion to vacate should be denied. after hearing both parties, it should appear that a case for arrest has not been made out, the order should be vacated (Chapin v. Seeley, 13 How. 493; Barron v. Sanford, 14 id. 443; 6 Abb. 320 n.) For to sustain an order of arrest, the plaintiff is bound to make out his case beyond a doubt (Mulrey v. Collett, 3 Rob. 716). Thus, where the order of arrest was for obtaining goods on a check which defendant represented would be paid on presentment, and which on presentment was not paid, it appearing that the drawer of the check, on the day it was delivered to plaintiff, and on the following day, had in bank to his credit funds sufficient to pay the check if it had been presented, the order of arrest was vacated (Stewart v. Potter, 37 How. 68). In other cases it is held that the principle on which the court should act in such a case is to inquire whether, upon the whole case as presented, it appears that a verdict ought to be given for the plaintiff or defendant. If the questions are doubtful, then the plaintiff has not made out his case, and the defendant should be discharged (Hernandez v. Carnobelli, 10 How. 449; Republic of Mexico v. Arrangois, 11 id. 576; 5 Duer, 634; Barron v. Sanford, 14 How. 443; 6 Abb. 320 n.; Sachs v. Bertrand, 12 Abb. 433; 22 How. 95; Allen v. McCrasson, 32 Barb. 662). In Frost v. Mc Carger (14 How. 131), Marvin, J., reviewed the cases on this point very fully, and concluded that, when the facts justifying the arrest differ from the facts constituting the cause of action, and are not to be passed upon by the jury on the trial there, on a motion to discharge the order of arrest, the court may decide the disputed question of fact; but where the facts on which an order of arrest issued are those which constitute the cause of action, and their truth has to be passed upon by the jury, there the court ought not, except in a very clear case, to try the question on a motion to vacate the order of arrest (see Royal Ins. Co. v. Noble, 5 Abb. N. S. 54; Merritt v. Heckscher, 50 Barb. 452; Stuyvesant v. Bowran, 3 Abb. N. S. 270; 34 How. 51; Merwin v. Playford, 3 Rob. 702; Nelson v. Blachfield, 54 Barb. 630; Woodward Steam Pump Co. v. Stokes, 33 How. 396; Ely v. Mumford, 47 Barb. 629; Jaroslawski v. Saunderson, 1 Daly, 232). An issue as to fraud is for the jury (Francheris v. Henriquez, 24 How. 165; see Warren v. Leland, 13 Abb. 187). The capacity in which a defendant receives money of the plaintiff, so as to subject him to arrest for withholding it is part of the cause of action, to be proved on the trial, and the question cannot be tried by affidavits (Swift v. Wylie, 5 Rob. 680). And where the action was for the wrongful conversion of stock certificates left with defendant for safe keeping, the court refused to try the question of conversion on affidavits (Butler v. McIlvaine, 31 How. 379; see Jananique v. De Luc, 1 Abb. N. S. 419).

a. In an action to recover the possession of personal property, the sheriff's return is prima facie evidence that the property has been concealed or removed to prevent its being taken; but the defendant may rebut the presumption thus raised, and on its appearing that the defendant neither concealed, removed, nor disposed of the property to prevent its being taken, the court will vacate the order of arrest (Manley v. Paterson, 3 Code Rep. 89).

b. It is not a ground for vacating an order for arrest, that the case made by the complaint varies from that made by the affidavits, if the affidavits are themselves sufficient, and disclose a ground of arrest which is consistent with the allegations of the complaint (Stelle v. Palmer, 7 Abb. 181). Nor will an order of arrest be vacated because the summons is erroneously entitled (Bedell v. Sturta, 1 Bosw. 634), nor because since the granting the order the summons has been amended (Union B'k v. Mott, 6 Abb. 316), nor because an attachment proceeding between the same parties, and for the same cause of action, is pending in another State (Litheau v. Turner, 1 Code Rep. N. S. 210), nor because the defendant has been sued for the same cause in a foreign tribunal (Arthurton v. Dalley, 20 How. 311), nor because there is an improper joinder of parties plaintiff (Webber v. Moritz. 11 Abb. 113), nor because the defendant was arrested at a time when he was exempt from arrest (Hart v.