§ 183. (Am'd 1849, 1862.) Order, when made, its form. Time to answer, or move to vacate.

(1.) The order may be made to accompany the summons, or at any time afterwards, before judgment. It shall require the sheriff of the county where the defendant may be found forthwith to arrest him, and hold him to bail in a specified sum, and to return the order, at a time and place therein mentioned, to the plaintiff or attorney, by whom it shall be subscribed or indorsed.

(2.) But said order of arrest shall be of no avail, and shall be vacated or set aside on motion, unless the same is served upon the defendant, as provided by law, before the docketing of any judgment in the action; and the defendant shall have twenty days after the service of the order of arrest in which to answer the complaint in the action, and to move to vacate the order of arrest or to reduce the amount of bail.

a. Assignee.—Semble, an assignee of a cause of action is entitled to the order in the same manner as the original creditor (see King v. Kirby, 28 Barb. 49; Haight v. Hayt, 19 N. Y. 464).

b. Form of order.-In an action to recover the possession of specific personal property, an order of arrest which recites that the cause of action is for a detainer or conversion, and requiring the sheriff to hold the defendant to bail in a specified sum, is unauthorized. In such an action, the ground of arrest is a concealment, &c., of the property, and the order must require an undertaking to pay the amount which may be recovered (Elston v. Potter, 9 Bosw. 636; Sherlock v. Sherlock, 7 Abb. N. S. 22; contra, see Tracy v. Griffin, 50 Barb. 70 and 35 How. 209).

c. The order may be made returnable within a certain specified number of days after the arrest of the defendant. It need not name a day certain (Continental B'k v. DeMott, 8 Bosw. 696). It should not be made returnable on a Sunday; but if it is, it is an irregularity which may be remedied by amendment (Gould v. Spencer, 5 Paige, 541; Wright v. Jeffrey, 5 Cow. 208; Boyd v. Vanderkemp, 1 Barb. Ch. 273; Stone v. Martin, 2 Denio, 185).

d. Judgment.-The judgment referred to in this section is a final, not a conditional judgment. Thus, where a judgment was entered against a defendant for default of an answer, and he was afterwards allowed to come in and plead, the judgment, in the mean time, to stand as security, it was held not such a judgment as prevented the defendant's arrest on the original cause of action (Union B'k v. Mott, 4 Abb. N. S. 270; 38 N. Y. 18).

e. Vacating.-The motion to vacate may be made after judgment, if within twenty days after service of the order (Pelo v. Clukey, 36 How. 179). See section 204, post.

$ 184. Affidavit and order to sheriff, copy to defendant. The affidavit and order of arrest shall be delivered to the sheriff, who, upon arresting the defendant, shall deliver to him a copy thereof.

f. The omission to serve a copy of the order of arrest at the time of the arrest is an irregularity only, and does not entitle the defendant to his discharge

(Courter v. McNamara, 9 How 257; Barker v. Cook, 40 Barb. 254; 16 Abb. 83; 25 How. 190). The defendant may move for an order on the plaintiff to serve him with a copy of the order of arrest (ib.) The copy affidavit served, omitting the signature of the deponent or of the officer before whom the affidavit was sworn, does not invalidate the order of arrest (Barker v. Cook, supra; and see 8 Bosw. 591).

See note to section 182.

$ 185. Arrest, how made.

The sheriff shall execute the order by arresting the defendant, and keeping him in custody until discharged by law; and may call the power of the country to his aid in the execution of the arrest, as in case of process.

§ 186. (Am'd 1870.) Defendant discharged on bail or deposit. The defendant, at any time before execution, shall be discharged from the arrest, either upon giving bail, or upon depositing the amount mentioned in the order of arrest, as provided in this chapter.

The defendant may give bail whenever arrested, at any hour of the day or night, and shall have reasonable opportunity to procure it before being committed to prison.

a. Release.—The release of a defendant from arrest by the consent of the plaintiff's attorney, does not, per se, operate as a discharge of the order of arrest, and the defendant is therefore liable to arrest on final process, where the judgment warrants it. It seems that if the order of arrest had been vacated, the defendant could not again be arrested upon final process (Meech v. Loomis, 28 How. 209).

§ 187. Bail, how given.

The defendant may give bail, by causing a written undertaking to be executed by two or more sufficient bail, stating their places of residence and occupations, to the effect that the defendant shall, at all times, render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, or if he be arrested for the cause mentioned in the third subdivision of section 179, and undertaking to the same effect as that provided by section 211.

b. Qualifications. The common-law disqualifications of bail remain unaffected by the code (Wheeler v. Wilcox, 7 Abb. 74; Miles v. Clarke, 2 Bosw. 709; 4 Bosw. 632); and the court will take judicial notice of the disqualifications of bail, though unopposed (Laporte's Bail, 3 Dowl. 110).

c. Bail.—The following persons cannot be bail: Officers of the different courts, as attorneys (15 Johns. 535; 1 Wend. 35; Doug. 467, n.; Cowp. 828; Miles v. Clarke, 2 Bosw. 709; 4 Bosw. 632). Attorneys' partners and clerks

(1 D. & R. 9; 2 East, 182; 1 H. Bel. 76; 2 ib. 349; 2 B. &. P. 504). Sheriffs and their officers (22 Johns. 129; 2 W. Bl. 799; 2 Stra. 890; 1 Chitt. R. 713). Turnkeys and jailors (2 B. & P. 150). Persons who have been indemnified by the defendant's attorney (1 Bing. 64, 423; 1 B. & P. 103; and 1 Dowl. P. C. 1). Persons who have been once rejected as bail (3 D. & R. 5; 1 Chitt. R. 82, 676). And persons of infamous character (4 T. R. 440; 1 Dowl. P. C. 183; 3 ib. 320; 2 Chitt. 98). The sheriff is bound to take the bail, provided they are sufficient; and if he refused, he was liable to an action (2 Saund. 61, c. 5; 15 East, 320; 7 Johns. 138, 512).

a. Security.-The statute declaring void securities taken by public officers colore officii, has no application to a security taken by a party at whose suit an arrest is made. The latter may take any security he pleases on discharging his debtor from arrest (Decker v. Judson, 16 N. Y. 443).

b. Householder.—A surety who occupied a portion of a building as an office,-held to be a "householder" for the purposes of bail (Somerset Sav. B'k v. Huyck, 33 How. 323).

§ 188. (Am'd 1849, 1851.) Surrender of defendant.

At any time before a failure to comply with the undertaking, the bail may surrender the defendant in their exoneration, or he may surrender himself to the sheriff of the county where he was arrested, in the following manner:

1. A certified copy of the undertaking of the bail shall be delivered to the sheriff, who shall detain the defendant in his custody thereon, as upon an order of arrest, and shall, by a certificate in writing, acknowledge the surrender.

2. Upon the production of a copy of the undertaking and sheriff's certificate, a judge of the court or county judge may, upon a notice to the plaintiff of eight days with the copy of the certificate, order that the bail be exonerated; and on filing the order and the papers used on said application, they shall be exonerated accordingly. But this section shall not apply to an arrest for cause mentioned in subdivision 3 of section 179, so as to discharge the bail from an undertaking given to the effect provided by sec

tion 211.

c. "The execution of the undertaking fixes the character of the parties as bail, if they are not excepted to; or if excepted to and they justify as bail, the sheriff is exonerated from liability; if they are excepted to and do not justify, they are liable to the sheriff. Justification does not increase or diminish their liability. It is only a question whether the sheriff shall be exonerated, or whether he shall stand between the bail and the plaintiff in the action." Bail who have not justified are in the position of bail to the sheriff; and they have the right, as such bail, to surrender the defendant. And in all cases where bail are excepted to, and do not justify, they may surrender the defendant (Re Taylor, 7 How. 214; Humphrey, County Judge).

§ 189. Surrender of defendant.

For the purpose of surrendering the defendant, the bail, at

any time or place, before they are finally charged, may themselves arrest him, or by a written authority, indorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so.

a. The authority to arrest need not be signed by all the bail; and the authority to arrest of some of the bail would, it seems, be good, although the other bail should object (Re Taylor, 7 How. 214; Humphrey, County Judge). b. A sheriff who becomes bail may surrender his principal by re-arresting him (Seaver v. Genner, 10 Abb. 256).

c. The privilege of a witness from arrest does not extend to an arrest by his bail, semble (Ex parte Lyne, 3 Stark. 470).

§ 190. Bail, how proceeded against.

In case of failure to comply with the undertaking, the bail may be proceeded against, by action only.

d. Special bail, who have become fixed, cannot, in an action against them as such, show that before the recovery of judgment against their principal, he was and ever since had been utterly insolvemt, and had no property liable to be applied toward payment of such judgment (Lery v. Nicholas, 19 Abb. 282; see Willett v. Lassalle, 19 Abb. 272; Bensel v. Lynch, 2 Rob. 448; McArthur v. Pease, 46 Barb. 423; Metcalf v. Stryker, 10 Abb. 12; Gallarati v. Orser, 4 Bosw. 94).

e. The sureties to an undertaking of bail in an action against them after the breach, cannot question the liability of their principal to arrest or imprisonment. The undertaking imports that liability, and the sureties are estopped from controverting it (Gregory v. Levy, 12 Barb. 610; 7 How. 37). Sureties cannot defend on the ground of the illegality of the order of arrest, or that no execution against the person could issue upon the judgment. Their only remedy is to move for an exoneratur to be entered on the undertaking upon surrender of the judgment debtor to the sheriff (id.; Jewett v. Crane, 35 Barb. 208).

f. Where the plaintiff has the right to take the persons of all the defendants in satisfaction of his judgment, it carries with it the right to proceed against the bail of one of them as to whom there may be a return of non est inventus (Penn v. Remsen, 24 How. 503).

g. Properly, the action against the bail should be in the court in which the original action was pending (see 13 Johns. 424; Matthews v. Cook, 13 Wend. 33; Otis v. Wakeman, 1 Hill, 604).

h. On moving to set aside the proceedings in a suit on a bail bond, the paper had to be entitled in that suit (Phelps v. Hall, 5 Johns. 367; Pell v. Jadwin, 3 id. 448).

§ 191. (Am'd 1849.) Bail, how exonerated.

The bail may be exonerated, either by the death of the defendant, or his imprisonment in a State prison, or by his legal discharge from the obligation to render himself amenable to the process, or by his surrender to the sheriff of the county where he was arrested, in execution thereof, within twenty days after the commencement of the action against the bail, or within such further time as may be granted by the court.

a. Bail who have been excepted to by a party to an action, and have failed to justify, are not liable to such party on the undertaking. It seems that the sheriff may assign his rights against bail who have failed to justify, and that the assignee may recover thereon for damages actually accrued to the sheriff (Clapp v. Schutt, 19 Abb 121; 29 How. 255; 44 Barb. 9).

6. The court may, in the exercise of its discretion, exonerate bail after the lapse of more than twenty days from the commencement of the suit against them (Gilbert v. Bulkley, 1 Duer, 668). Thus, where in an action against bail, they had not surrendered their principal within twenty days from the commencement of the action, but after the expiration of such twenty days moved to be exonerated on surrender of their principal, and payment of the costs of the action,—the motion was granted (see Bank of Geneva v. Reynolds, 20 How. 18).

c. In an action against bail in the supreme court, that court may grant relfef to the bail, although the original action was in another court, and may allow a stay of proceedings to enable them to surrender their principal (Barker v. Russell, 11 Barb. 304).

d. Sureties are not bound to surrender the defendant unless the plaintiff takes such steps as authorize the sheriff to hold the defendant (Allen v. Breslauer, 8 Cal. R. 552).

e. If, upon the recovery of judgment against the defendant, his bail, instead of surrendering his body, elect to pay, and do, while an appeal is pending, pay the amount of the judgment, such payment will not discharge their liability as bail (Appleby v. Robinson, 44 Barb. 316). While the action is pending, the defendant must be deemed to remain in custody of his bail, and they are liable to be sued for his neglect to render himself in execution whenever his body is legally required, and as often as they fail to produce his body upon process against his body, there is a breach of the undertaking, until they have paid the amount stated in such undertaking, or the defendant is in fact surrendered or charged in execution (id).

f. A party offering to surrender himself in a discharge of his sureties, and the sheriff refusing to take him,—held a good surrender and a discharge of the sureties (Babb v. Oakley, 5 Cal. R. 93).

g. The provision of the revised statutes allowing exoneration of bail on the death of the principal within eight days after return of process, is still in force, and the expiration of the time to answer is deemed the time of the return of process (Hayes v. Carrington, 12 Abb. 179; 21 How. 143). Presumptive proof of the death of their principal entitles the bail to exoneration (Merritt v. Thompson, 1 Hilton, 550). The bail may move to be exonerated (id.)

h. A sheriff's privilege as bail is commensurate with his liability; and whenever other bail can be relieved, he can; and he, as can other bail, may surrender the principal after judgment and execution against the person, and within twenty days after suit commenced against him, the sheriff, on his liability as bail (Mc Gregory v. Willett, 17 How. 439; Metcalf v. Stryker, 10 Abb. 12). See section 201 and note.

i. After the twenty days limited by this section have expired, bail cannot properly surrender their principal; and if they do surrender him, the sheriff cannot properly hold him (Baker v. Curtis, 10 Abb. 279).

j. Bail may be permitted, for their own protection, to defend the action against their principal (Jewett v. Crane, 35 Barb. 208).

k. This section has made no change in the practice in respect to the period of time after the commencement of the action against the bail, within which the application for further time to surrender the principal may be made, nor in respect to the grounds upon which the allowance of further time may be granted (Bank of Geneva v. Reynolds, 12 Abb. 81; 20 How. 18). In a note appended to the report of this case in 12 Abb. is a collection of authorities on the subject of a surrender in discharge of bail.

7. The granting or refusing an application by bail for leave to surrender the principal after the time therefor has expired, is in the discretion of the