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require notice to be given to the sheriff, or to the plaintiff, or to both.
$ 565. An officer of a court of record, appointed or elected pursuant to law, is privileged from arrest, auring he actual sitting, which he is required to attend, of a term of the court of which he is an officer, and no longer; but an attorney or counsellor is not thus privileged, unless he is employed in a cause, to be heard at that term.
$566. Except where an order of arrest can be granted 66 How. Pr. only by the court, a defendant, arrested before answer, has 1. twenty days after the arrest, in which to answer the complaint; and judgment must be stayed accordingly. $ 567. [Am'd 1877.] Except where an order of arrest can
2 N. Y, Stato be granted only by the court, a defendant, arrested as pre- Rep. 645. scribed in this title, may, at any time before final judgment, 126 N.Y. 364. or, if he was arrested within twenty days before final judgment, at any time within twenty days after the arrest, apply 2. App. Div. to vacate the order of arrest; or to reduce the amount of 336, bail; or to increase the security given by the plaintiff ; or for one or more of those forms of relief, together, or in the alternative. In a case where the order of arrest can be granted only by the court, a like application may be made, at any time within twenty days after the arrest; and an application to increase the security given by the plaintiff, may be made at any time before final judgment.
$ 568. (Amd 1877.) An application, specified in the last 21. Abb. N. section, may be founded only upon the papers upon which the C. 321. order was granted ; in which case, it must be inade to the 2 App. Div. court or, if the order was granted by a judge out of court, to 336. the sme judge, in court or out of court, and with or without notice, as he deems 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 night show upon the trial. $ 569. [Repealed 1877.]
570. [Repealed 1877.)
85 Hun, 377. 572. [Am'd 1877, 1882, 1886.) Except in a case where an order of arrest can be granted only by the court if the plain
13 Week. tiff unreasonably delays the trial of the action or neglects to 54 N.Y.Sup
Dig. 460 enter judgment therein within ten days after it is in his power er. Ct. (J. & to do so, or neglects to issue execution against the person of S.) 129. the defendant within ten days after the return of the execu- 44 Hun, 475. tion against the property, and in any event neglects to issue 19 Abby the same within three months after the entry of the judgment, 4250,22 Ia. or whenever it shall appear to the satisfaction of the court that the plaintiff in an action, or a judgment creditor in a judgment, delays the enforcement of inis remedies therein by 27 N.Y.State collusion, or for the purpose of allowing the debtor to remain Rep. 266 31. in prison under the inaudate in any other action, before the App. Div.
458; 23 . 221; 26 Id. 977.
issuing of the mandate in favor of such creditor, so as to pro-
FICATION OF THE BAIL AND DISPOSITION OF THE DEPOSIT.
sheriff. 574. When defendant may elect 583. Payment of deposit into to give bail, etc., or bond
court by sheriff. for liberties.
584. Substituting tail for de. 575. Undertaking of the bail ;
posit. what to contain.
585. How deposit disposed of. 576. Examination of persons 586. When deposit to be paid to offered as bail.
a third person. 577. Filing, etc., of papere ; 587. Sheriff, when liable as bail; plaintiff's acceptance or
his discharge from liarejection of bail.
bility. 678. Notice of justification ; 588. Proceedings on judgment new undertaking, if other
against sheriff. bail is given.
589. Bail liable to sheriff. 579. Qualifications of bail.
590. Filing papers if bail not 580. Justification of bail.
given. 581. Allowance of bail.
$ 573. The defendant, at any time before he is in contempt, where the order can be granted only by the court, or, in any other case, at any time before execution against his person, must be discharged from arrest, either upon giving arresto pendepositing the sum specified in the order to
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.
$ 574. Where the defendant is actually confined in the jail, by virtue of an order of arrest, and final or interlocutory judgment has been rendered against him in the action, but an execution against 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.
S 575. 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 etỉect :
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 de fault of his so doing, that he will, at all times, render himselt amenable to proceedings to punish him for the omission
So in original,
118 N. Y. 187: 122 Id, 551.
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.
$ 576. (Am'd 1877, 1879.] 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 acknowledginent of the undertaking, must, if the sheriff so requires, exainine under oath, to a reasonable extent, the persous 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
$577. (Amd 1879.) 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.
$ 578. Within ten days after the receipt of the notice, 16 Misc. 661 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 juilge, 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.
$ 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 froin 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 16 Misc. 561. 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 imust be reduced to writing, and subscribed by the bail.
$ 581. If the judge finds the bail sufficient, he must annex 93 N. Y. 57 the examination to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk. The sherin is thereupon exonerated from liability,
1 How. Pr. N. S. 274.
23 Abb. N.
$ 582. The defendant may, instead of giving bail, deposC. 221.
it with the sheriff the sum specified in the order. The sherifl must thereupon give the defendant a certificate of the deposit, and discharge him from custody.
$ 583. The sheriff must, within four days after the de18 Abb. N.
posit, pay it into court. He must take, from the officer reC. 320.
ceiving 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 18 Abb. in. any time before the expiration of the right to be discharged on C. 320. 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. 18 Abb. N.
$ 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 coort, 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. 18 Abb. N. $ 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 of ficer who receives the deposit, who .nust 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.
$ 587. [Am'd 1877.] If, after the defendant is arrested, 4 Month. L Bul. 7.
he escapes or is rescued, or the bail, if any, given by him, do 2 Civ: Pro, not justify, when they are not accepted, or if the sheriff fails
to pay the deposit into court as required by section five hunered 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:
1. If the case is one where the order could be granted only by the court, at any time before the court directs the perform ance of the act specified in the order.
2 In any other case, at any time before an execution is Ksued against the person of the defendant, upon a judgment in the action.
$ 588. If judginent is recovered against the sherill, upon his liability as bail, and an execution thereon is returned #bolly or partly unsatisfied, the official bond of the sheriff may be prosecuteil, as in any other case of delinquency.
589. (Amd 1877.) The bail taken upon the arrest, unless tbey justify, or other bail are given and justify, are liable to the sheriff for all damages, which he sustains by reason of the omission.
$ 590. (Amd 1879.) Within ten days after the defendant Es 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 endorsell, 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.
CHARGING AND DISCHARGING BAIL. 591. When defendant may be
2 597. Certain execrtions neces. 592. How surrender be
sary before action against made; exoneration
bail. bail thereupon.
598. Duty of sheritfon such 543. Bail may arrest defend
599. Defences in action against 594. Voluntary surrender; éx.
pal is imprisoned 3. Rights, etc.; of sheriff who
criminal charge, is liable as bail.
601. Bail exonerated by death, 590, Bail;
how proceeded $ 591. Except in an action to recover a chattel, the bail & Misc. 545, 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.
$ 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 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 plaintill'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 bai! are exonerated accordingly.