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.

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.

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.

Substitute for Co. Proc., 187. Slack v. Heath, 4 E. D. Smith, 95; Decker v. Judson, 16 N. Y. 439; Peoplo v. Ingersoll, 14 Abb. N. S. 23; Conklin v. Dutcher, 5 How. 386.

§ 576. [Amended, 1879.] Examination of persons offered as 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.

From 2 R. S. 380, 20 (2 Edm. 395). Brayton r. Smith, 6 Paige, 489.

577. [Amended, 1879.] Filing, etc., of papers, plaintiff's acceptance or rejection 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. Co. Proc., 192, am'd.

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

578. Notice of justification; new undertaking, if other bail is given. 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 575 of this act.

Id., 193, am'd. Zimm v. Ritterman, 5 Rob. 618; Miles v. Clarke. 4 Bosw. 632.

§ 579. Qualifications of bail. — The qualifications of bail are as follows:

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

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.

Id., 194, am'd. People v. Ingersoll, 14 Abb. N. S. 23; Wheeler v. Wilcox, 7 id. 74; Somerset Bank v. Huyck, 33 How. 323. See Voorhies' Code, 187, note.

§ 580. Justification of bail. 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 attor ney, the examination must be reduced to writing, and subscribed by the bail.

Id., 195, am'd.

§ 581. 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 there

upon exonerated from liability.

Co. Proc., 196, am'd. O'Nell v. Durkee, 12 How. 93; s. c., sub. nom. Overill v. Durkee, 2 Abb. 383.

$582. Deposit of money with sheriff. 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.

Id., 197, am'd. Parson v. Travis, 5 Duer, 650.

583. Payment of deposit into court by sheriff. The 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.

Id., 198.

§ 584. 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. Id., 199, am'd.

$585. How deposit disposed of. - 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 un

applied, must be refunded to the defendant or his representative.

Substitute for Co. Proc., 200.

586. When deposit to be paid to a 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 defendant, 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.

New. See Com. Warehouse v. Graber, 45 N. Y. 393.

$ 587. [Amended, 1877.] Sheriff, when liable as bail; his discharge from liability. 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 583 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:

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.

Co. Proc., 201, am'd. McKenzie v. Smith, 48 N. Y. 143; Bensel v. Lynch, 44 1d. 162; Brady v. Brundage, 59 id. 310; affirming 2 T. & O. 621 and cases cited; Voorhies' Code, 201, note.

$588. Proceedings on judgment against sheriff.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.

589.* Bail liable to sheriff. 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.

Id., 203. Clapp v. Schutt, 44 N. Y. 104; affirming 44 Barb. 9; 20 How.

255.

$590. [Amended, 1879.] Filing papers if bail not given. 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 indorsed, 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.

New. See ante, § 561.

ARTICLE FOURTH.

CHARGING AND DISCHARGING BAIL.

SEC. 591. When defendant may be surrendered.

592. How surrender to be made; exoneration of ball thereupon. 593. Bail may arrest defendant.

594. Voluntary surrender; exoneration of ball thereupon.

595. Rights, etc., of sheriff who is liable as bail.

596. Bail; how proceeded against.

597. Certain executions necessary before action against ball.

598. Duty of sheriff on such executions.

599. Defences in action against bail.

600, Rellef of bail where principal is imprisoned on criminal charge. 601. Bail exonerated by death, etc.

§ 591. When 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.

Co. Proc., 188, first and last clauses, am'd. Overrules Cozine v. Walter, 55 N. Y. 304, and Star Fire Ins. Co. v. Godet, 34 N. Y. Supr. 339. See Brady e. Brundage, 59 N. Y. 310; Hissong . Hart, 39 N. Y. Supr. 411; McKenzie r. Smith, 48 N. Y. 143; Mills e. Hildreth, 7 Hun, 298; Gauntley v. Wheeler, 4 Lans. 491.