པཱ་ །

exonerated

491. (§ 85.) The bail are exonerated by the death Bail, how of the defendant or his imprisonment in a State Prison, or by his legal discharge from the obligation to render himself amenable to the process.

NOTE.-1. DEATH.-Bail are exonerated by the death of the principal.-Merrit vs. Thompson, 1 Hilt., p. 550; Olcott vs Lilly, 4 Johns., p. 407; Hayes vs. Carrington, 12 Abb., p. 179; 21 How., p. 143.

2. LEGAL DISCHARGE.-The final termination only of the action in favor of the defendant operates as a legal discharge.-Von Gerhart vs. Lighte, 13 Abb., p. 101.

492. (§ 86.) Within the time limited for that purpose, the Sheriff must file the order of arrest in the office of the Clerk of the Court in which the action is pending, with his return indorsed thereon, together with a copy of the undertaking of the bail. The original undertaking he must retain in his possession until filed, as herein provided. The plaintiff, within ten days thereafter, may serve upon the Sheriff a notice that he does not accept the bail, or he is deemed to have accepted them, and the Sheriff is exonerated from liability. If no notice be served within ten days, the original undertaking must be filed with the Clerk of the Court.

Delivery of taking to and its

under

plaintiff,

acceptance
or rejection

by him.

justifica

493. (§ 87.) Within five days after the receipt of Notice of notice, the Sheriff or defendant may give to the plain- tion. tiff, or his attorney, notice of the justification of the same, or other bail (specifying the places of residence and occupations of the latter), before a Judge of the Court, or County Judge, or County Clerk, at a specified time and place; the time to be not less than five nor more than ten days thereafter, except by consent of parties. In case other bail be given, there must be Now undera new undertaking.

NOTE.-Leave to except may, on motion, be granted after the time has expired, but on terms and without

54-VOL. I.

taking, if
other bail.

prejudice to any right of the Sheriff.-Zimm vs. Ritterman, 5 Rob., p. 618.

494. (§ 88.) The qualifications of bail are as follows:

1. Each of them shall be a resident and householder, or freeholder, within the county;

2. Each must be worth the amount specified in the order of arrest, or the amount to which the order is reduced, as provided in this Chapter, over and above all his debts and liabilities, exclusive of property exempt from execution; but the Judge or County Clerk, on justification, may allow more than two sureties to justify, severally, in amounts less than that expressed the order, if the whole justification be equivalent

in

to that of two sufficient bail.

NOTE.-See Sec. 1057 of this Code.

HOUSEHOLDER.-A party who rents and occupies part of a building for an office is a householder within the meaning of this section.-S. and W. Savings Bank vs. Huyck, 33 How., p. 323.

495. ($89.) For the purpose of justification, each of the bail must attend before the Judge or County Clerk, 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 or Clerk, in his discretion, may think proper. The examination must be reduced to writing, and subscribed by the bail, if required by the plaintiff.

NOTE. The kind of property is immaterial.-1 Till. & Sh. Pract., p. 586; but it must be in the party's own right.-2 Chitt., p. 97.

496. (§ 90.) If the Judge or Clerk find the bail sufficient, he must annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed, and the Sheriff is thereupon exonerated from liability.

NOTE.-1. JUSTIFICATION.-The justification is not complete until the Judge has indorsed his allowance on

the undertaking and caused it to be filed.—O'Neil vs.
Durkee, 12 How., p. 94; 2 Abb., p. 383.

2. FRAUD IN JUSTIFICATION.-In Brown vs. Gillies,
1 Chitt., p. 372, an order for the allowance of bail was
discharged, upon it appearing that the bail had per-
jured himself on his justification.-See, also, Gould vs.
Berry, 1 Chit., p. 143.

497. (§ 1.) The defendant may, at the time of his arrest, instead of giving bail, deposit with the Sheriff the amount mentioned in the order. In case the amount of the bail be reduced, as provided in this Chapter, the defendant may deposit such amount instead of giving bail. In either case the Sheriff must give the defendant a certificate of the deposit made, and the defendant must be discharged from custody.

NOTE.-Money deposited is in the custody of the law, and, as between the plaintiff and defendant, is considered the property of the latter.-Hermann vs. Aaronson, 3 Abb. (N. S.), p. 389; 34 How., p. 272; 8 Abb. (N. S.), p. 155. Money deposited by a third party becomes the property of the defendant.-Sutter vs. Weiner, 6 Abb., p. 191.

498. ($92.) The Sheriff must, immediately after the deposit, pay the same into Court, and take from the Clerk receiving the same two certificates of such payment, the one of which he shall deliver to the plaintiff's attorney, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the Sheriff, to collect the sum deposited, as in other cases of delinquency.

ing bail for

499. ($93.) If money is deposited, as provided Substitut in the two last sections, bail may be given and may deposit. justify upon notice, at any time before judgment; and one filing of the undertaking and justification with the Clerk, the money deposited must be refunded to the defendant.

NOTE.-Hermann vs. Aaronson, 34 How., p. 272; 3 Abb. (N. E.), p. 389; 8 Abb. (N. G.), p. 155; Sutter vs. Weiner, 6 ▲bb., p. 191.

500. (§ 94.) Where money has been deposited, if it remain on deposit at the time of the recovery of a judgment in favor of the plaintiff, the Clerk must, under the direction of the Court, apply the same in satisfaction thereof; and after satisfying the judgment, refund the surplus, if any, to the defendant. If the judgment is in favor of the defendant, the Clerk must, under like direction of the Court, refund to him the whole sum deposited and remaining unapplied.

NOTE. The plaintiff is entitled to have the money deposited applied on any judgment he may obtain.— Hermann vs. Aaronson, 3 Abb. (N. S.), p. 289; 34 How., p. 272; 8 Abb. (N. S.), p. 155. If the money deposited is lost, stolen, or embezzled, without any act of the plaintiff' contributing to that result, the loss is that of the depositor, as between him and the plaintiff. Parsons vs. Tavis, 5 Duer, p. 650. See, also, De Peyster vs. Clarkson, 2 Wend., p. 77.

501. (§ 95.) If, after being arrested, the defendant escape or is rescued, the Sheriff is liable as bail; but he may discharge himself from such liability by the giving bail at any time before judgment.

NOTE. The amount of the judgment in the original action is the measure of damages in an action against the Sheriff. His liability is that of bail who have justified.-Gallarati vs. Orser, 4 Bosw., p. 94; 27 N. Y., p.

324.

502. ($96.) If a judgment is recovered against the Sheriff upon his liability as bail, and an execution thereon is returned unsatisfied in whole or in part, the same proceedings may be had on his official bond, for the recovery of the whole or any deficiency, as in other cases of delinquency.

NOTE.-The sureties on the official bond of the Sheriff are liable for any default of the Sheriff as bail.-Metcalf vs. Dikeman, 4 Keyes, p. 93.

503. (§ 97.) A defendant arrested may at any time before the justification of bail apply to the Judge who made the order, or the Court in which the action

Amended 1873-41.

CODE OF CIVIL PROCEDURE.

429

on motion.

is pending, upon reasonable notice, to vacate the order Affidavits
of arrest or to reduce the amount of bail. If the
application is 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.

NOTE.-A party once arrested and discharged cannot
again be arrested in the same action.-McGilvery vs.
Moorhead, 2 Cal., p. 607. If the process, though proper
in form, has been issued in an improper case, the party
will be discharged.-Soule vs. Hayward, 1 Cal., p. 345.
On an order to show cause why the arrest of a party,
made on an allegation of fraud, should not be vacated,
the question of fact involved must be decided, like any
other question of fact, upon the preponderance of the
evidence.-Southworth vs. Resing, 3 Cal., p. 378. The
defendant, by putting in bail and neglecting to move
his discharge, waives all previous irregularities.-Ma-
toon vs. Eder, 6 Cal., p. 57.

When the

order

or bail

504. (§ 98.) If, upon such application, it appears that there was not sufficient cause for the arrest, the vacated order must be vacated; or if it appears that the bail reduced. was fixed too high, the amount must be reduced.

CHAPTER II.

CLAIM AND DELIVERY OF PERSONAL PROPERTY.

SECTION 509. Delivery of personal property, when it may be claimed.
510. Affidavit and its requisites.

511. Requisition to Sheriff to take and deliver the property.
512. Security on the part of the plaintiff, and proceedings in

serving the order.

513. Exception to sureties and proceedings thereon, or on

failure to except.

514. Defendant, when entitled to redelivery.

515. Justification of defendant's sureties.

516. Qualification of sureties.

517. Property, how taken when concealed in building or

inclosure.

518. Property, how kept.