bail, stating their places of residence and occupations, to the effect that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein.

§ 163. At any time before a failure to comply with their undertaking, the bail may surrender the defendant in their exoneration, or he may surrender himself to the sheriff of the county where he was arrested, in the following manner :

1. A certified copy of the undertaking of the bail shall be delivered to the sheriff, who shall detain the defendant in his custody thereon, as upon an order of arrest, and shall by a certificate in writing, acknowledge the surrender.

2. Upon the undertaking and sheriff's certificate, a judge of the court or county judge, may, upon a notice to the plaintiff, of eight days, with a copy of the undertaking and certificate, order that the bail be exonerated; and on filing the order and the papers used on such application, they shall be exonerated accordingly.

164. For the purpose of surrendering the defendant, the bail, at any time or place, before they are finally charged, may themselves arrest him, or by a written authority, endorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so.

165. In case of failure to comply with the undertaking, the bail may be proceeded against by action only.

§ 166. The bail may be exonerated, either by the death of the defendant, or by his legal discharge from the obligation to render himself amenable to the process, or by his surrender to the sheriff of the county where he was arrested, in execution thereof, within twenty days after the commencement of the action against the bail, or within such further time as may be granted by the

court.

167. Within the time limited for that purpose, the sheriff shall deliver the order of arrest to the plaintiff or attorney by whom it is subscribed, with his return endorsed, and the undertaking of the bail. The plaintiff, within ten days thereafter, may return the undertaking to the sheriff, with a notice that he does not accept it; or he shall be deemed to have accepted it, and the sheriff shall be exonerated from liability.

§ 168. On the receipt of the undertaking and notice, the sheriff may, within ten days thereafter, give to the plaintiff or attorney by whom the order of arrest is subscribed, notice of the justification of the same or other bail, (specifying the places of residence and occupations of the latter,) before a judge, at a specified time and place; the time to be not less than five, nor more than ten days thereafter. In case other bail be given, there shall be a new undertaking, in the form prescribed in section 162.

§ 169. The qualifications of bail must be as follows: 1. Each of them must be a resident, and householder or freeholder, within the state.

2. They must each be worth the amount specified in the order of arrest; but the judge, on justification, may allow more than two bail to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail.

§ 170. For the purpose of justification, each of the bail shall attend before the judge, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge, in his discretion, may think proper. The examination shall be reduced to writing and subscribed by the bail.

§ 171. If the judge find the bail sufficient, he shall annex the examination to the undertaking, endorse his allowance thereon, and deliver the same to the plaintiff, or cause them to be filed; and the sheriff shall thereupon be exonerated from liability.

§ 172. The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff the amount mentioned in the order. The sheriff shall thereupon give the defendant a certificate of the deposit, and the defendant shall be discharged out of custody.

§ 173. The sheriff shall within four days after the deposit, pay the same into court; and shall receive from the clerk two certificates of such payment, the one of which he shall deliver to the plaintiff, and the other to the defendant. For any default in making such pay

ment, the same proceedings may be had on the official bond of the sheriff to collect the sum deposited, as in other cases of delinquency.

§ 174. If money be deposited, as provided in the last two sections, bail may be given and justified upon notice as prescribed in section 168, any time before judgment; and thereupon the judge before 'whom the justification is had, shall direct, in the order of allowance, that the money deposited be refunded by the sheriff to the defendant, and it shall be refunded accordingly.

§ 175. Where money shall have been so deposited, if it remain on deposit at the time of an order or judgment for the payment of money to the plaintiff, the clerk shall under the direction of the court, apply the same in satisfaction thereof and after satisfying the judgment, shall refund the surplus, if any, to the defendant. If the judgment be in favor of the defendant, the clerk shall refund to him the whole sum deposited and remaining unapplied.

§ 176. If, after being arrested, the defendant escape or be rescued, or bail be not given and justified, or a deposit be not made instead thereof, the sheriff shall himself be liable as bail. But he may discharge himself from such liability, by the giving and justification of bail as provided in sections 168, 169, 170 and 171, at any time before process against the person of the defendant, to enforce an order or judgment in the action.

§ 177. If a judgment be recovered against the sheriff, upon his liability as bail, and an execution thereon be

returned unsatisfied in whole or in part, the same proceedings may be had on the official bond of the sheriff, to collect the deficiency, as in other cases of delinquency.

§ 178. The bail taken upon the arrest shall, unless they justify, or other bail be given and justified, be liable to the sheriff, by action, for all damages which he may sustain by reason of such omission.

179. A defendant arrested, may, at any time before the justification of bail, apply, on motion, to vacate the order of arrest, or to reduce the amount of the bail.

180. If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the order of arrest was made.

CHAPTER II.

CLAIM AND DELIVERY OF PERSONAL PROPERTY.

SECTION 181. Immediate delivery of personal property may be claimed, when action is commenced.

182. Affidavit, and its requisites.

183. Requisition to sheriff, to take and deliver the property.

184. Security on the part of plaintiff, and justification.

185. On failure to justify, sheriff to deliver property to defendant.

186. Defendant entitled to delivery, on giving security.

187. Justification of defendant's sureties.

188. Qualifications and justification of sureties.

189. Property how taken, when concealed in building or enclosure. 190. Property, how kept.

This chapter is intended to supply the provisional relief, which is now obtained in the action of replevin. We think it will be found much simpler, than the statute for which it is a substitute.