Imágenes de páginas
PDF
EPUB
[blocks in formation]

follows:

§ 579. The qualifications of bail are as 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.

§ 580. 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.

§ 581. 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.

§ 582. 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.

§ 583. 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.

§ 584. 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.

§ 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.

§ 586. 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

[graphic]

ART. 4.

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 represent

ative.

when lia

charge

§ 587. If after the defendant is arrested, ne escapes or is rescued, Sheriff,
or the bail, if any, given by him, do not justify, when they are not be as bail;
accepted, or if the sheriff fails to pay the deposit into court as required his dis-
by section five hundred and eighty-three of this act, the sheriff is from lia.
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.

bility.

judgment

$588. If judgment is recovered against the sheriff, upon his liability Proceedas bail, and an execution thereon is returned wholly or partly unsat-ings on isfied, the official bond of the sheriff may be prosecuted, as in any against other case of delinquency.

sheriff.

$589. The bail taken upon the arrest, unless they justify, or other Bail liable
bail are given and justify, are liable to the sheriff for all damages, to sheriff.
which he sustains by reason of the omission.

$590. If the defendant does not give bail, within ten days after he Filing pa
is arrested, the sheriff must file with the clerk the order of arrest, with pers if bail
his return thereon indorsed, and the papers upon which the order of

arrest was

granted.

[ocr errors]

ARTICLE FOURTH.

CHARGING AND DISCHARGING BAIL.

SECTION 591. When defendant may be surrendered.

592. How surrender to be made; exoneration of bail thereupon.

593. Bail may arrest defendant.

594. Voluntary surrender; exoneration of bail thereupon.

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

596. Bail; how proceeded against.

597. Certain executions necessary before action against bail.

598. Duty of sheriff on such executions.

599. Defences in action against bail.

600. Relief of bail where principal is imprisoned on criminal charge.

601. Bail exonerated by death, etc.

not given.

may be sur

$591. Except in an action to recover a chattel, the bail may surrender when dethe defendant in their own exoneration, or the defendant may sur- fendant render himself in exoneration of the bail, before the expiration of the rendered. time to answer, in an action against them. The surrender must be made to the sheriff of the county, where the defendant was arrested. $592. 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. 2. A certified copy of the undertaking of the bail must be delivered

How sur

render to
be made;

exonera

tion of bail
thereupon.

[ocr errors]

TITLE 1.

Bail may

arrest defendant.

surrender;

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.

§ 593. 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. Voluntary § 594. Where the defendant surrenders himself in exoneration of his bail, he must present himself to the sheriff, and require the sheriff, in tion of bail writing, to take him into custody, in exoneration of his bail. The thereupon. 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.

exonera

Rights, etc., of

sheriff who is liable as

bail.

Bail; how proceeded against. Certain

executions necessary

tion against bail.

§ 595. 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.

§ 596. In case of failure to comply with the undertaking, the bail may be proceeded against by action, and not otherwise.

§ 597. 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, before ac 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:

Duty of sheriff on

cutions.

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 hav been issued to the same sheriff, and by him returned, not less tha fifteen days after its receipt, to the effect that the defendant could no be found within his county.

§ 598. The sheriff must diligently endeavor to enforce an execution such exe- issued and delivered to him, as prescribed in the last section, notwith standing any direction he may receive from the plaintiff or his attorney § 599. In an action against bail, it is a defence, that an execution against the property, or against the person, of the defendant in th original action, was not issued, as prescribed, section five hundred an

Defences

in action against bail.

ninety-seven of this act; or that it was not issued in sufficient time to enable the sheriff to serve 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.

ART. T.

bail where

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

erated by

§601. Except in an action to recover a chattel, the bail must be Bail exonexonerated where either of the following events occurs, before the expi- death, etc. ration of the time to answer in an action against them:

1. The death of the original defendant.

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.

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

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.

TITLE II.

Injunction.

ARTICLE 1. Cases where an injunction may be granted; granting and service of an injunction order.

2. Security.

3. Vacating or modifying an injunction order.

ARTICLE FIRST. ·

CASES WHERE An Injunction MAY BE GRANTED; granting AND SERVICE OF AN
INJUNCTION ORDER.

Sacrion 602. Writ of injunction abolished, and order substituted.

603. Injunction, when the right thereto depends upon the nature of the
action.

604. Id.; when the right thereto depends upon extrinsic facts.

605. Restrictions upon injunctions to restrain State officers.

606. By whom injunction granted in other cases.

607. Proof necessary to procure injunction.

608. At what time the order may be granted.

609. When notice required or not required. Injunction pending an appli

cation.

610. Order must recite grounds; service of order.

TITLE 2. § 602. The writ of injunction has been abolished. A temporary inWrit of in junction may be granted by order, as prescribed in this article.

junction

abolished,

substi

when the

§ 603. Where it appears, from the complaint, that the plaintiff and order demands, and is entiled to a judgment against the defendant, tuted. restraining the commission or continuance of an act, the commission Injunction, or continuance of which, during the pendency of the action, would right there- produce injury to the plaintiff, an injunction order may be granted to to depends restrain it. The case, provided for in this section, is described in this nature of act, as a case where the right to an injunction depends upon the nature of the action.

upon the

the action.

Id.; when the right

§ 604. In either of the following cases, an injunction order may also thereto de- be granted in an action:

pends upon extrinsic facts.

Restrictions upon

State officers.

1. Where it appears, by affidavit, that the defendant, during the pendency of the action, is doing, or procuring, or suffering to be done, or threatens, or is about to do, or to procure, or suffer to be done, an act, in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom.

2. Where it appears, by affidavit, that the defendant, during the pendency of the action, threatens, or is about to remove, or to dispose of his property, with intent to defraud the plaintiff, an injunction order may be granted, to restrain the removal or disposition.

§ 605. Where a duty is imposed by statute upon a State officer, or injunction board of State officers, an injunction order to restrain him or them, or to restrain a person employed by him or them, from the performance of that duty, or to prevent the execution of the statute, shall not be granted, except by the supreme court, at a general term thereof, sitting in the department in which the officer or board is located, or the duty is required to be performed; and upon notice of the application therefor to the officer, board, or other person to be restrained.

By whom injunction

othercases.

§ 606. Except where it is otherwise specially prescribed by law, an granted in injunction order may be granted by the court in which the action is brought, or by a judge thereof, or by any county judge; and where it is granted by a judge, it may be enforced as the order of the court. § 607. The order may be granted, where it appears to the court or procure in judge, by the affidavit of the plaintiff, or any other person, that sufficient grounds exist therefor.

Proof nec

essary to

junction.

At what time the

§ 608. The order may be granted to accompany the summons, or at order may any time after the commencement of the action, and before final judbe granted. ment.

When notice re

quired or

not re

quired.

§ 609. The order may be granted, upon or without notice in the dis cretion of the court or judge, unless the defendant has answered; in which case, it can be granted only upon notice, or an order to show Injunction cause. Where an application for an injunction is made upon notice. pending an or an order to show cause, either before or after answer, the court or tion. judge may enjoin the defendant, until the hearing and decision of the application.

applica

recite

Order must $610. The injunction order must briefly recite the grounds for the grounds; injunction. Where it is granted by the court, it must be served by service of delivering a certified copy thereof; where it is granted by a judge, i

order.

must be served by showing the original order, and delivering a copy thereof. Service of the order, upon a corporation, may be made a prescribed in this act, for making personal service of a summons upor a corporation. Copies of the papers, upon which the order was granted must be delivered with the copy of the order.

« AnteriorContinuar »