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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 a 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 section 211.
§ 189. [Sec. 161.] For the purpose of surrendering the de- The same fendant, the bail, at any time or place, before they are finally charged, may themselves arrest him, or by a written authority, endorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to
§ 190. [Sec. 165.] In case of failure to comply with the Bail, how undertaking the bail may be proceeded against by action against. only.
§ 191. (Sec. 166.] The bail may be exonerated, either by Bail, how the death of the defendant or his imprisonment in a state prison, or by his legal discharge from the obligation to ren- 1849. der 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.
§ 192. [Sec. 167. Within the time limited for that pur- Delivery of pose the sheriff shall deliver the order of arrest to the plain-king 10 tiff or attorney by whom it is subscribed, with his return en- and its redorsed, and a certified copy of the undertaking of the bail. rejection The plaintiff, within ten days thereafter, may serve upon Amended
Notice of justification
if other bail.
tions of bail
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. [Sec. 168.] On the receipt of such notice, the sheriff
or defendant may, within ten days thereafter, give to the plain1849, 1851 tiff 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 dertaking thereafter. In case other bail be given, there shall be a new
undertaking, in the form prescribed in section one hundred
and eighty-seven. Qualifica
§ 194. [Sec. 169.] 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.
$ 195. [Sec. 170.] 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. See Supreme Court rule, 89.
§ 196. [Sec. 171.] If the judge or justice of the peace find the bail sufficient, he shall annex the examination to the undertaking, endorse his allowance thereon, and cause them to
Justification of bail.
Allowance of bail.
mone with the
be filed with the clerk; and the sheriff shall thereupon be exonerated from liability.
$ 197. [Sec. 172.] The defendant may, at the time of his Deposit of arrest, instead of giving bail, deposit with the sheriff the sheriff. amount mentioned in the order. The sheriff shall thereupon give the defendant a certificate of the deposit, and the defendant shall be discharged out of custody.
§ 198. [Sec. 173.] The sheriff shall, within four days af- Payment of ter the deposit, pay the same into court; and shall take court by the from the officer receiving the same, two certificates of such payment, the one of which he shall deliver to the plaintiff, 1849. 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. [Sec. 174.) If money be deposited, as provided Substituin the last two sections, bail may be given and justified for deposit. . upon notice, as prescribed in section 193, any time before Amended 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. $ 200. [Sec. 175.] Where money shall have been so de-Money de
posited how posited, if it remain on deposit at the time of an order or applied 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.
201. [Sec. 176.] If, after being arrested, the defendant Sheriff, escape or be rescued, or bail be not given or justified, or a aş bail, and deposit be not made instead thereof, the sheriff shall himself from liabilbe liable as bail. But he may discharge himself from such liability, by the giving and justification of bail as provided 1849.
Proceedings on judgment against sheriff.
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.
$ 202. [Sec. 177.] If a judgment be recovered against the sheriff, upon his liability 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. [Sec. 178.] The bail taken upon the arrest, shall, to sheriff. unless they justify, or other bail be given or justified, be liaAmended ble to the sheriff, by action, for damages which he may
sustain by reason of such omission.
§ 204. [Sec. 179.] A defendant arrested, may, at any time der of ar- before the justification of bail, apply, on motion, to vacate duce bill. the order of arrest, or to reduce the amount of bail.
$ 205. [Sec. 180.] 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.
An order of arrest will not be vacated on the ground that no special cause for requiring bail, is set up in the plaintiff's affidavit upon which the order was granted. Baker agt. Swackhamer and Swackhamer, 5 How. 251; Martin vs. Vanderlip, 3 How. 265.
A defendant who is a common carrier, in an action on the case for negligence, is not entitled to be discharged from arrest upon a ca. sa. Burkle v. Ellis et al. 4 How, 288.
Motion to vacate or
rest or re
Affidavits on motion.
207. Affidavit and its requisites.
217. Notice and affidavit, when and where to be filed, $206. [Sec. 181.] The plaintiff, in an action to recover Delivery of
personal the possession of personal property, may, at the time of property, issuing the summons, or at any time before answer, claim may be the immediate delivery of such property as provided in Amended this chapter.
§ 207. [Sec. 182.] Where a delivery is claimed, an affi- Affideas davit must be made by the plaintiff, or by some one in his quisites. behalf, showing,
1. That the plaintiff is the owner of the property claimed, (particularly describing it,) or is lawfully entitled to the possession thereof, by virtue of a special property therein, the facts in respect to which shall be set forth;
2. That the property is wrongfully detained by the defendant;
3. The alleged cause of the detention thereof, according to his best knowledge, information and belief.
4. That the same has not been taken for a tax, assessmentor fine, pursuant to a statute; or seized under an execution or attachment against the property of the plaintiff ; or if so seized, that it is, by statute, exempt from such seizure; and,
5. The actual value of the property. Where a delivery is claimed of property seized under an execution, the affidavit must shew clearly that it is exempt by a detailed statement of facts Spaulding vs. Spaulding, 3 How. 297. [NOTES.]