Supersedeas, unless defendant in execu tion, etc. proper; and the application must be heard upon those papers only. Or it may be founded upon proof, by affidavit, on the part of the defendant; in which case, it must be made to the court, or, if the order was granted by a judge, out of court, to any judge of the court, upon notice; and it may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground of arrest recited in the order, and no other, unless the defendant relies upon a discharge in bankruptcy, or upon a discharge or exoneration, granted in insolvent proceedings; in which case, the plaintiff may show any matter in avoidance thereof, which he might show upon the trial. Substitute for § 205 of Code Pro. 46 How. 518; Liddell v. Paten, 7 Hun, See Wait's Pr. 695-704; Wait's Code, 195. 367-370; see, also, Evans v. Holmes, §§ 569, 570 and 571 struck out in 1877. § 572. [Amended, 1877.] Except in a case where an order of arrest can be granted only by the court, if the defendant is in actual is charged custody, by virtue of an order of arrest in the action, and the plaintiff neglects to enter judgment in the action, within one month after it is in his power to do so; or neglects to issue execution against the person of the defendant, within three months after the entry of judgment; the defendant must, on his application, made upon notice to the plaintiff, be discharged from custody, by the court in which the action was commenced, or by a judge thereof, within the county where the defendant is in custody; unless reasonable cause is shown why the application should not be granted. A defendant, discharged as prescribed in this section, shall not be arrested, upon an execution issued upon a judgment in the action. Taken from Code Pro., § 288, and 3 R. S. (5th ed.) 870; 2 R. S. (Edm. ed.) 577. See Bostwick v. Goetzel, 57 N. Y. (12 Sick.) 582, 586; Noe v. ARTICLE THIRD. DISCHARGING THE DEFENDANT UPON BAIL OR DEPOSIT; JUSTIFICATION OF THE SEC. 573. Defendant to be discharged on bail or deposit. 574. When defendant may elect to give bail, etc., or bond for liberties. 576. Examination of persons offered as bail. 577. Filing, etc., of papers; plaintiff's acceptance or rejection of bail. 580. Justification of bail. SEC. 581. Allowance of bail. 582. Deposit of money with sheriff. 583. Payment of deposit into court by sheriff. 584. Substituting bail for deposit. 585. How deposit disposed of. 586. When deposit to be paid to a third person. 587. Sheriff, when liable as bail; his discharge from liability. 588. Proceedings on judgment against sheriff. 589. Bail liable to sheriff. 590. Filing papers if bail not given. to be dis on bail or § 573. The defendant, at any time before he is in contempt, Defendant where the order can be granted only by the court, or, in any other charged case, at any time before execution against his person, must be dis- deposit. charged from arrest, either upon giving bail, or upon depositing the sum specified in the order of arrest. The defendant may give bail, or make the deposit, immediately upon his arrest, at any hour of the day or night; and he must have reasonable opportunity to see* for and to procure bail, before being committed to jail. Code Pro., § 186; Wait's Code, 357; 1 Wait's Pr. 666-670. Bail may be given after execution is issued against the defendant's prop- defendant to give or bond § 574. Where the defendant is actually confined in the jail, by When virtue of an order of arrest, and final or interlocutory judgment has may elect been rendered against him in the action, but an execution against bail, etc., his person has not been issued, he may elect, either to give a bond for the liberties of the jail, or to give bail or make a deposit, as prescribed in this article. New. for liber tles. taking of what to the ball; contain. § 575. The defendant may give bail, by delivering to the sheriff Undera 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. 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. * Error in engrossing for "seek." The word "the" omitted by an error in engrossing. Examination of persons offered as bail. Filing, etc., of papers; plaintiff's accept ance or rejection of bail. Notice of justifica under taking, if other bail is given. 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. Intended as a substitute for Code Pro., 187. See Wait's Code, 358; 1 Wait's Pr. 667; McKenzie v. Smith, 48 N. Y. (3 Sick.) 143; Clapp v. Schutt, 44 N. Y. (5 Hand) 104; 141. § 576. [Amended, 1877.] 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 3 R. S. (5th ed.) 662; 2 R. S. (Edm. ed.) 395. § 577. Within three days after bail is given, the sheriff must file with the clerk the order of arrest, with his return thereon indorsed; the papers upon which the order of arrest was granted; and the undertaking of the bail. Within the same time, he 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. Where an order of arrest, directing the arrest of two or more defendants, has been executed as to some, but not as to all of them, the sheriff may file a copy of the order of arrest, instead of the original. V. Code Pro., § 192, amended. See 1 Wait's Pr. 681; Wait's Code, 361; Clapp § 578. Within ten days after the receipt of the notice, the tion: new 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 Qualifica tions of bail. act. Code Pro., § 193. See 1 Wait's Pr. 683; Wait's Code, 361. § 579. 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. Code Pro., § 194, amended. See 1 Wait's Pr. 686; Wait's Code, 361, 362. tion of § 580. For the purpose of justification, each of the bail must Justificaattend before the judge, at the time and place mentioned in the bail. 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 Pro., § 195, amended. See 1 Wait's Pr. 684; Wait's Code, 362. ance of § 581. If the judge finds the bail sufficient, he must annex Allowthe examination to the undertaking, indorse his allowance thereon, bail. and cause them to be filed with the clerk. The sheriff is thereupon exonerated from liability. Code Pro., § 196. See Wait's Code, 363; 1 Wait's Pr. 687, 692. of money with § 582. The defendant may, instead of giving bail, deposit with Deposit the sheriff the sum specified in the order. The sheriff must there upon give the defendant a certificate of the deposit, and discharge him from custody. Code Pro., § 197, amended. See 1 Wait's Code, 363; 1 Wait's Pr. 667, 691; and see Commercial_Warehouse sheriff. of deposit by sheriff. § 583. The sheriff must, within four days after the deposit, pay Payment it into court. He must take, from the officer receiving it, two cer- into court tificates 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 Pro., § 198. See 1 Wait's Pr. 691; Wait's Code, 363. ing bail posit. § 584. If money is deposited, as prescribed in the last two sec- Substituttions, bail may be given, and may justify upon notice, at any time for debefore the expiration of the right to be discharged on bail. Thereupon the judge, before whom the justification is had, must direct, in the When deposit to a third person. order of allowance, that the money deposited be refunded to the defendant or his representative, and it must be refunded accordingly. Code Pro., § 199, amended. See 1 Wait's Pr. 691; Wait's Code, 364. § 585. 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. Intended as a substitute for Code cial Warehouse Co. of N. Y. v. Graber, 45 N. Y. (6 Hand) 393. § 586. At any time before the deposit is paid into court, the be paid to 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. Sheriff, when liable as bail; his from New. § 587. [Amended, 1877.] If, after the defendant is arrested, he escapes or is rescued, or the bail, if any, given by him, do not justify, discharge when they are not accepted, or if the sheriff fails to pay the deposit liability. 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: |