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court. It should not be granted if the bail are indemnified (id.) It should be shown as part of the application that the bail are not indemnified (id.) And the application should be made without unnecessary delay. Continued absence of the principal from any cause entitles the bail to make the application on the principal's return (id.; and see Baker v. Curtis, 10 Abb. 279; Hayes v. Carrington, 12 Abb. 179; 21 How. 143).

a. Bail are exonerated by a judgment in favor of their principal, but if before an exoneratur is entered the judgment in favor of the principal is set aside, the liability of the bail is revived (Von Gerhard v. Lighte, 13 Abb. 101).

b. This section is not a substitute for the revised statutes as defining the whole extent of the sheriff's liability as bail. See McCreery v. Willett, 22 How. 91; S. C. as Mc Gregory v. Willett, 17 How. 439; and see Metcalf v. Stryker, 10 Abb. 21; 31 Barb. 62.

c. Under the former practice, where bail was substituted, the liability of the former sureties remained until an exoneratur was entered (1 Taunt. 427; 6 Bing. 251). They might move for an exoneratur at any time before they were sued, or even after, in some cases, and on payment of costs (4 Burr. 2107; Say. 58; 1 W. Bl. 462; 1 Arch. Pr. 107). But semble, if bail are excepted to, and fail to justify, they cease to be bail, and are discharged (1 Cow. 54, 60; 2 id. 514; 9 Wend. 477).

§ 192. (Am'd 1849.) Delivery of undertaking to plaintiff, and its acceptance or rejection by him.

Within the time limited for that purpose, the sheriff shall deliver the order of arrest to the plaintiff, or attorney by whom it is subscribed, with his return indorsed, and a certified copy of the undertaking of the bail. The plaintiff, within ten days thereafter, may serve upon the sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted it, and the sheriff shall be exonerated from liability.

§ 193. (Am'd 1849, 1851.) Notice of justification. New bail. On the receipt of such notice, the sheriff or defendant may, within ten days thereafter, give to the plaintiff, or attorney by whom the order of arrest is subscribed, notice of the justification of the same or other bail (specifying the places of residence and occupation of the latter) before a judge of the court, or county judge, at a specified time and place; the time to be not less than five nor more than ten days thereafter. In case other bail be given, there shall be a new undertaking in the form prescribed in section

187.

d. By giving notice of justification, the defendant waives every defect in the notice of exception and irregularity in the service of it (1 H. Bl. 106, 80; 1 Arch. Pr. 108). Further time to serve notice of justification may be obtained (1 Tidd's Pr. 272). Nothing is said, either in the former books of practice or in the Code, with regard to excepting to the bail where, after notice of exception, the defendant serves notice of the justification of new bail. It seems that the exception to the first-named bail extends to those substituted.

a. Leave may be given to except to bail after the time limited therefor has expired (Zimm v. Ritterman, 5 Rob. 618).

§ 194. (Am'd 1849.) Qualifications of bail. The qualifications of bail must be as follows:

1. Each of them must be a resident, and householder or freeholder, within the State.

2. They must each be worth the amount specified in the order of arrest, exclusive of property exempt from execution; but the judge, or a justice of the peace, on justification, may allow more than two bail to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail.

See note to § 187.

195. (Am'd 1849.) Justification of bail.

For the purpose of justification, each of the bail shall attend before the judge, or a justice of the peace, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge, or justice of the peace, in his discretion, may think proper. The examination shall be reduced to writing; and subscribed by the bail, if required by the plaintiff.

b. The bail must justify in the county where the defendant shall have been arrested, or where the bail reside (Rule 5).

c. Opposition to bail is usually on the ground, either of some defect or irregularity in the form or service of the notice of bail or of justification, or that the bail are not properly qualified. Under the former practice, if the bail did not attend to justify at the time appointed, and no further time was given, they were said to be out of court. But further time was sometimes given, either to justify the same bail, or to add and justify others (1 Tidd's Pr. 272). Thus if they were prevented from justifying by circumstances happening after they were put in, as by their subsequent bankruptcy (1 Chitt. R. 11), or insolvency (b. 3, 4), or by their having given up housekeeping (ib. 6), further time would, in general, be allowed to add and justify other bail (1 Tidd's Pr. 297, 273). But where bail offered themselves, and were rejected on account of some personal insufficiency existing at the time they were put in, as by their being then attorneys (1 Chitt. R. 8), or insolvent debtors, or by their not being then housekeepers (ib. 7, 88, 144), time would seldom be allowed to add and justify others (1 Tidd's Pr. 237). So, if the bail, from any unforeseen accident, could not attend (2 Chitt. R. 107), or if, after notice of justification, they refuse to attend (1 Arch. Pr. 113), or if one or both of them failed to justify, by reason of the decision of the court upon any doubtful point of law as to their right to justify (1 Chitt. R. 287; 1 Arch. Pr. 193), further time would, in general, be granted, either to justify the same bail or to add and justify others, on a proper affidavit of the facts.

$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 (b.)

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.) bail.

Vacating order of arrest, or reducing

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

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