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25 Undertaking; form and contents. The defendant may give bail, by delivering to the sheriff a written undertaking, in the sum specified in the order of arrest, executed by two or more sufficient bail, stating their places of residence and occupations, to the following effect:

1. If the order of arrest could be granted only by the court, that the defendant will obey the direction of* court, or of an appellate court, contained in an order or a judgment, requiring him to perform the act specified in the order; or, in default of his so doing, that he will, at all times, render himself amenable to proceedings to punish him for the omission.

21 Hun, 431; 43 id. 211; 2 L. B. 41.

2. If the action is to recover a chattel, that the defendant will deliver it to the plaintiff, if delivery thereof is adjudged in the action, and will pay any sum recovered against him in the action.

4 E. D. Smith, 95; 55 How. Pr. 136; 10 W. D. 95; 85 Hun, 377; 2 App. Div. 272.

3. In any other case, that the defendant will, at all times, render himself amenable to any mandate, which may be issued to enforce a final judgment against him in the action. Code Civ. Pro., § 575.

43 Hun, 201; 44 id. 476; 11 Civ. Pro. 409; 12 id. 248; 19 Abb. N. C. 58; 114 N. Y. 558; 118 id. 187; 122 id. 551; 34 N. Y. St. R. 138; 3 App. Div. 269.

26 Same; examination of bail. It is not necessary that the undertaking should be approved, or accompanied with an affidavit of justification of the bail. But the officer taking the acknowledgment of the undertaking must, if the sheriff so requires, examine under oath, to a reasonable extent, the persons offering to become bail, concerning their property and their circumstances. The examination must be reduced to writing, subscribed by the bail, and annexed to the undertaking. Code Civ. Pro., § 576, as am'd L. 1877, c. 416, and L. 1879, c. 542. 49 N. Y. St. R. 323; 20 N. Y. Supp. 838.

27 When sheriff to give certified copies of papers to plaintiff's attorney; notice of non-acceptance of bail. Within three days after bail is given, the sheriff must deliver to the plaintiff's attorney copies, certified by him, of the order of arrest, return, and undertaking. The plaintiff's attorney, within ten days thereafter, must serve upon the sheriff a notice that he does not accept the bail; otherwise he is deemed to have accepted them, and the sheriff is exonerated from liability. Code Civ. Pro., § 577, as am'd L. 1879, c. 542.

5 Rob. 618; 4 Bosw. 632; 49 N. Y. St. R. 323; 20 N. Y. 838.

28 Justification of bail; when new undertaking. Within ten days after the receipt of the notice, the sheriff or the defendant may serve upon the plaintiff's attorney, notice of the justification of the same or other bail, specifying the place of residence and occupation of each of the latter, before a judge of the court, or a county judge, at a specified time and place; the time to be not less than five nor more than ten days thereafter, and the place to be within the county where one of the bail resides, or where the defendant was arrested. If other bail are given, a new undertaking must be executed, as prescribed in section five hundred and seventy-five of this act. Code Civ. Pro., § 578.

61 How. Pr. 396; 49 N. Y. St. R. 324; 69 id. 300; 15 N. Y. Supp. 237; 20 id. 838. 29 Qualifications of bail.

61 How. Pr. 398; 6 W. D. 243.

The qualifications of bail are as follows:

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

7 Abb. Pr. 73; 33 How. Pr. 323; 8 Hun, 566; 30 N. Y. 472; 1 L. B. 93.

2. Each of them must be worth the sum specified in the order of arrest, exclusive of property exempt from execution; but the judge, on justification, may allow more than two bail to justify, severally, in sums less than that specified in the order, if the whole justification is equivalent to that of two sufficient bail. Code Civ. Pro., § 579.

14 Abb. Pr. N. S. 23; 15 N. Y. Supp. 237.

* The word "the" omitted by an error in engrossing.

30 Proceedings on justification; adjournments; examination, when reduced to writing. For the purpose of justification, each of the bail must attend before the judge, at the time and place mentioned in the notice, and be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge, in his discretion, thinks proper. The judge may, in his discretion, adjourn the examination from day to day, until it is completed; but such an adjournment must always be to the next judicial day, unless by consent of parties. If required by the plaintiff's attorney, the examination must be reduced to writing, and subscribed by the bail. Code Civ. Pro., § 580.

93 N. Y. 57; 4 Civ. Pro. 225; s. c. 2 Civ. Pro. (McCarty) 450, 454, rev'g 48 N. Y. Super. 559; 6 W. D. 243; 61 How. Pr. 398; 49 N. Y. St. R. 324; 15 N. Y. Supp. 237; 20 id. 838; 37 id. 1023.

31 Allowance of bail. If the judge finds the bail sufficient, he must annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk. The sheriff is thereupon exonerated from liability. Code Civ. Pro., § 581.

12 How. Pr. 95; 2 Abb. Pr. 384; 93 N. Y. 57; 4 Civ. Pro. 226; s. c. 2 Civ. Pro. (McCarty) 450, 454, rev'g 48 N. Y. Super. 559; 49 N. Y. St. R. 324.

32 Deposit of money instead of bail. The defendant may, instead of giving bail, deposit with the sheriff the sum specified in the order. The sheriff must thereupon give the defendant a certificate of the deposit, and discharge him from custody. Code Civ. Pro., § 582.

5 Duer, 650; 18 Abb. N. C. 321; s. c. 12 Civ. Pro. 310.

The

33 When sheriff to pay same into court; certificates of payment; default. sheriff must, within four days after the deposit, pay it into court. He must take, from the officer receiving it, two certificates of the payment, one of which he must deliver to the plaintiff, and the other to the defendant. For a default in making the payment, the official bond of the sheriff may be prosecuted, as in any other case of delinquency. Code Civ. Pro., § 583.

18 Abb. N. C. 320, 321; s. c. 12 Civ. Pro. 310; 22 id. 109.

34 Substituting bail for deposit. If money is deposited, as prescribed in the last two sections, bail may be given, and may justify upon notice, at any time before the expiration of the right to be discharged on bail. Thereupon the judge, before whom the justification is had, must direct, in the order of allowance, that the money deposited be refunded to the defendant, or his representative, and it must be refunded accordingly. Code Civ. Pro., § 584.

18 Abb. N. C. 320, 321; s. c. 12 Civ. Pro. 311.

35 Disposition of deposit. If money deposited is not refunded, as prescribed in the last section, it is, in a case where the order of arrest could be granted only by the court, subject to the direction of the court, as justice requires, before and after the judgment. In any other case, if it remains on deposit, when final judgment is rendered for the plaintiff, it must be applied, under the direction of the court, in satisfaction of the judgment; and the surplus, if any, must be refunded to the defendant, or his representative. If the final judgment is for the defendant, or the action abates, or is discontinued, the sum deposited, and remaining unapplied, must be refunded to the defendant or his representative. Code Civ. Pro., § 585.

9 Civ. Pro. 11, 14; 18 Abb. N. C. 320, 322; s. c. 12 Civ. Pro. 311; 13 id. 70.

36 Direction by defendant to pay deposit to third person. At any time before the deposit is paid into court, the defendant may deliver to the sheriff a written direction, to pay it to a third person, therein specified, in the event that the defendant becomes entitled to a return thereof; but without expressing any other contingency. The direction must be acknowledged or proved, and certified, in like manner as a deed to be recorded; and the sheriff must deliver it to the officer who receives the deposit, who must note the substance thereof, with the entries of the deposit, in his books, and upon the two certificates of payment into court. The money thus deposited is deemed the property of the third person, subject to the plaintiff's interest therein; and subject to the rights of a creditor of the de

fendant, where the direction was given for the purpose of hindering, delaying, or defrauding creditors. The money, or the residue thereof, must be paid to the third person, where, by the provisions of the last two sections, it is required to be refunded to the defendant, or his representative. Code Civ. Pro., § 586.

45 N. Y. 393; 9 Civ. Pro. 11, 15; 18 Abb. N. C. 320; 2 How. Pr. N. S. 49; 23 Abb. N. C. 296, 433: 7 N. Y. Supp. 921; 10 id. 40.

37 Sheriff, when liable as bail; how discharged. If, after the defendant is arrested, he escapes or is rescued, or the bail, if any, given by him, do not justify, when they are not accepted, or if the sheriff fails to pay the deposit into court as required by section five hundred and eighty-three of this act, the sheriff is liable as bail. But the sheriff may, except in an action to recover a chattel, discharge himself from liability, by the giving and justification of bail, as follows: 44 N. Y. 162; 2 T. & C. 621; s. c. 59 N. Y. 310; 19 Hun, 1; s. c. 58 How. Pr. 264; 43 Hun, 206; 14 W. D. 446; 5 N. Y. St. R. 399; 3 Civ. Pro. 363, 366; s. c. 11 Daly, 304. 1. If the case is one where the order could be granted only by the court, at any time before the court directs the performance of the act specified in the order.

2. In any other case, at any time before an execution is issued against the person of the defendant, upon a judgment in the action. Code Civ. Pro., § 587, as am'd L. 1877, c. 416.

48 N. Y. 143; 118 id. 187.

38 Judgment against sheriff as bail, how collected. If judgment is recovered against the sheriff, upon his liability as bail, and an execution thereon is returned wholly or partly unsatisfied, the official bond of the sheriff may be prosecuted, as in any other case of delinquency. Code Civ. Pro., § 588.

39 Liability of bail to sheriff for not justifying. The bail taken upon the arrest, unless they justify, or other bail are given and justify, are liable to the sheriff for all damages, which he sustains by reason of the omission. Code Civ. Pro., § 589, as am'd L. 1877, c. 416.

44 N. Y. 104, aff'g 44 Barb. 9; s. c. 29 How. Pr. 255; 5 N. Y. St. R. 309; 43 Hun, 206; 19 id. 1; s. c. 58 How. Pr. 266; 118 N. Y. 187.

40 When sheriff to file papers, etc. Within ten days after the defendant is arrested if he does not give bail, or if he gives bail, within ten days after the justification of the bail, the sheriff must file with the clerk the order of arrest, or, where it was granted by the court, the certified copy thereof, delivered to him, with his return thereupon endorsed, the papers upon which the order of arrest was granted, and the undertaking given on the part of the plaintiff. Where an order of arrest, directing the arrest of two or more defendants, has been executed as to one or more, but not as to all of them, the sheriff may file a copy of the order of arrest, instead of the original. Code Civ. Pro., § 590, as am'd L. 1879, c. 542.

Charging and Discharging Bail.

41 When and to whom defendant may be surrendered. Except in an action to recover a chattel, the bail may surrender the defendant in their own exoneration, or the defendant may surrender himself in exoneration of the bail, before the expiration of the time to answer, in an action against them. The surrender must be made to the sheriff of the county, where the defendant was arrested. Code Civ. Pro., § 591.

55 N. Y. 304; 59 id. 310; 48 id. 143; 34 N. Y. Super. 359: 39 id. 411; 55 id. 280; 7 Hun. 298; 43 id. 206; 17 id. 297; 58 How. Pr. 169; s. c. 9 W. D. 169; 58 How. Pr. 264; 18 Abb. N. C. 238; 85 Hun, 377; 59 N. Y. St. R. 264; 66 id. 407.

42 How surrender to be made; exoneration of bail. Where the bail surrender the defendant, the surrender must be made in the following manner:

1. They must take the defendant to the sheriff, and require him, in writing, to take the defendant into his custody.

18 Abb. N. C. 238; 44 Hun, 478; s. c. 19 Abb. N. C. 60; s. c. 12 Civ. Pro. 250; 43 Hun, 206. 2. A certified copy of the undertaking of the bail must be delivered to the sheriff, who must detain the defendant in his custody thereupon, as upon the

original mandate, and must, by a certificate in writing, acknowledge the surrender. Upon the application of the bail, made upon notice to the plaintiff's attorney, and upon production of the sheriff's certificate and a copy of the undertaking, a judge of the court, or the county judge of the county where the action is triable, may make an order, directing that the bail be exonerated. On filing the order and the papers used on the application therefor, the bail are exonerated accordingly. Code Civ. Pro., § 592.

18 Abb. N. C. 238; 44 Hun, 478; s. c. 19 Abb. N. C. 60; s. c. 12 Civ. Pro. 250; 43 Hun, 206. 43 One or more bail may arrest defendant or authorize his arrest. For the purpose of surrendering the defendant, the bail, at any place or at any time before they are finally charged, may themselves arrest him, or, by a written authority, indorsed on a certified copy of the undertaking, may empower another person to do so. And one or more of the bail may thus arrest and surrender the defendant, although the others do not join with him or them, for that purpose. Code Civ. Pro., § 593, as am'd L. 1877, c. 416.

7 How. Pr. 212; 18 Abb. N. C. 238; 43 Hun, 206; 44 id. 478; s. c. 19 Abb. N. C. 60; 8. c. 12 Civ. Pro. 250.

44 Voluntary surrender; exoneration of bail. Where the defendant surrenders himself in exoneration of his bail, he must present himself to the sheriff, and require the sheriff, in writing, to take him into custody, in exoneration of his bail. The sheriff must detain him accordingly, as prescribed in subdivision second of section five hundred and ninety-two of this act; and, if requested by the bail, at any time after the surrender, the sheriff must, by a certificate in writing, acknowledge the surrender. An order for the exoneration of the bail may be procured, as prescribed in section five hundred and ninety-two of this act. Code Civ. Pro., § 594.

43 Hun, 206.

45 Rights and liabilities of sheriff as bail. Where the sheriff is liable as bail, he has all the rights and privileges, and is subject to all the duties and liabilities of bail; and bail given by him, in order to discharge himself from liability, must be regarded as the bail of the defendant in the action. But this section does not apply to an action to recover a chattel; or to a case where a defence arises to an action against the bail, in consequence of an act or omission of the sheriff. Code Civ. Pro.. § 595.

59 N. Y. 310; 88 id. 611; 9 How. Pr. 180, 188; 17 id. 439; 58 id. 264; 10 Abb. Pr. 12, 256; 3 Civ. Pro. 363, 366; 11 Daly, 305; 43 Hun, 206. 46 When bail may be sued. ing, the bail may be proceeded Pro., § 596.

17 Hun, 233.

In case of failure to comply with the undertakagainst by action, and not otherwise. Code Civ.

47 Prerequisites of suit. An action may be brought, as prescribed in the last section, in a case where the order of arrest could be granted only by the court, at any time after the bail have failed to comply with their undertaking. Where the undertaking was given in an action to recover a chattel, an action may be brought thereupon, at any time after the return, wholly or partly unsatisfied, of an execution for the delivery of the possession of the chattel, with respect to which the order of arrest was granted. In any other case, an action cannot be brought, as prescribed in the last section, until the following requisites have been complied with:

1. An execution, against the property of the defendant, must have been issued to the sheriff of the county in which he was arrested, and returned by that sheriff, wholly or partly unsatisfied.

2. An execution, against the person of the defendant, must have been issued to the same sheriff, and by him returned, not less than fifteen days after its receipt, to the effect that the defendant could not be found within his county. Code Civ. Pro., § 597.

17 Hun, 232; 45 N. Y. St. R. 620; 6 N. Y. Supp. 30.

48 Duty of sheriff to enforce execution. The sheriff must diligently endeavor to enforce an execution issued and delivered to him, as prescribed in the last section, notwithstanding any direction he may receive from the plaintiff, or his attorney. Code Civ. Pro., § 598, as am'd L. 1877, c. 416.

88 N. Y. 611, rev'g 25 Hun, 262; 45 N. Y. St. R. 620.

49 Defences in action against bail. In an action against bail, it is a defence, that an execution, against the property, or against the person, of the defendant in the original action, was not issued, as prescribed in section five hundred and ninety-seven of this act; or that it was not issued in sufficient time to enable the sheriff to enforce it; or that a direction was given, or other fraudulent or collusive means were used, by the plaintiff or his attorney, to prevent the service thereof. Code Civ. Pro., § 599, as am'd L. 1877, c. 416.

62 How. Pr. 455; 88 N. Y. 611, rev'g 25 Hun, 262.

50 Relief of bail where defendant imprisoned on criminal charge, etc. If the defendant in the original action, after his discharge upon bail, is imprisoned, either within or without the state, upon a criminal charge, or a conviction of a criminal offence, the court, in which an action against the bail is pending, may, before the expiration of the time to answer, and upon notice to the adverse party, make such an order for the relief of the bail, as justice requires. Code Civ. Pro., § 600.

1 Johns. Cas. 28; 18 Johns. 335; 16 W. D. 333; 7 Civ. Pro. 209, 211, 214; s. c. 1 How. Pr. N. S. 506, aff'g 5 Civ. Pro. 358; s. c. 67 How. Pr. 173; 3 Civ. Pro. 363, 367; 11 Daly, 305.

51 When bail exonerated after commencement of suit against them, by death, etc., of original defendant. Except in an action to recover a chattel, the bail must be exonerated where either of the following events occurs, before the expiration of the time to answer in an action against them:

1. The death of the original defendant.

4 Lans. 491; 4 Johns. 407; 1 Hilt. 550; 21 How. Pr. 143; s. c. 12 Abb. Pr. 179; 7 Civ. Pro. 209, 211, 214; s. c. 1 How. Pr. N. S. 507, aff'g 5 Civ. Pro. 358; s. c. 67 How. Pr. 173; 12 Abb. Pr. 81, n.

2. His legal discharge from the obligation to render himself amenable to the process, direction, or proceedings, with respect to which the undertaking of the bail was made.

12 Abb. Pr. 81, n.; 81 N. Y. 91; 54 How. Pr. 390; 49 N. Y. Super. 507.

3. His surrender to the sheriff of the county where he was arrested, as prescribed in this article.*

21 How. Pr. 143; s. c. 12 Abb. Pr. 179; 1 Duer, 668; 20 How. Pr. 18; s. c. 12 Abb. Pr. 81; 12 id. 81, n.; 1 L. B. 21; 55 N. Y. 304.

Where either event occurs, after the commencement of the action against the bail, the court may, in its discretion, impose the payment of the plaintiff's costs and expenses, incurred after the return of the execution against the person, as a condition of allowing the exoneration. And the court may, by an order, made upon notice to the adverse party, grant such further time as it deems just, after answer, for the surrender of the original defendant. In that case, his surrender, within the time so granted, has the same effect, as if it had been made before answer. Code Civ. Pro., § 601, as am'd L. 1877, c. 416.

For earlier Laws on this subject, see Birdseye's Chronological Table of Statutes, under L. 1788, c. 46, pp. 112 and 114, and L. 1801, c. 58, Revised Acts, c. 102 (1 K. & R., p. 387), and c. 136, p. 448, 1 R. L., 1813, c. 17, p. 324, c. 67, pp. 423, 424; also 2 R. S., pp. 348-351.

ARREST IN CRIMINAL CASES.

Security to Keep the Peace.

52 Information of threatened crime. An information may be laid before any magistrate that a person has threatened to commit a crime against the person or property of another. Code Crim. Pro., § 84.

17 Wend. 181; 23 id. 638; 2 N. Y. Cr. R. 54; 141 N. Y. 538; 66 Hun, 230; 57 N. Y. St. R. 822.

*This subject, §§ 41-51.

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