may be allowed by the court, on motion made on notice,17 to supply the omission or defect. And the same relief may, in the discretion of the court, be allowed to meet a motion founded on the irregularity,18 to vacate the proceedings.

38. Service of copy, with notice of filing.]- In the absence of any other direction as to service or delivery, the party who has filed an undertaking should serve a copy, with notice of filing.19 The copy should include the acknowledgment, affidavit of sufficiency, and approval.

39. Failure to serve, and relief therefrom.]-Where an undertaking or bond has been given in compliance with a statutory provision, the proceedings based thereon will not generally be rendered ineffectual by a failure to serve it upon the opposite party; but such omission is regarded in the light of an irregularity from which the party may be relieved by amendment, either upon or without terms.20 But in case of an appeal to the Court of Appeals failure to serve a copy of the undertaking " on the attorney for the adverse party with the notice of appeal, or before the expiration of the time" to appeal,21 is a ground for a dismissal of the appeal; 22 and although the omission may be supplied23 by leave of court where the neglect is deemed excusable, yet the subsequent service of the undertaking will not be effectual to stay proceedings without an order of the court.25

24

IV. JUSTIFICATION ON NOTICE.

40. Justification on notice.]- The word " justification," which is frequently applied to the ex parte affidavit of sufficiency, already

17 Wheeler v. Miller, 61 How. Pr. 396; Ritter v. Krekeler, 44 id. 445. 18 Paragraphs 163 and 53, pp. 154 and 474, of this volume.

19 See article on SERVICE.

20 Such is the rule applied in case of the omission of the sheriff to serve the defendant with a copy of the order of arrest, or the affidavits upon which it is granted. Keeler v. Belts, 3 Code Rep. 183, 184; Courter v. McNamara, 9 How. Pr. 255, 257 (where the court said: "Even if the arrest itself was rendered illegal by the omission [to serve copy order], the order was not affected by it, and the omission at most would be an irregularity; such an irregularity, too, as might be cured." Motion to vacate denied). 21 Code Civ. Pro., § 1334.

*

*

*

22 Arch. Iron Works v. City of Brooklyn, 85 N. Y. 652; Maxwell r. Wessels,

7 Wis. 103; followed in White v. Polleys, 20 id. 503.

23 Arch. Iron Works v. City of Brooklyn (above); Falk v. Goldberg, 45

Wis. 94.

24 Smith v. Heermance, 18 How. Pr. 261.

25 Niles v. Battershall, 18 Abb. Pr. 161, 26 How. Pr. 93.

mentioned, and which serves as justification in case no exception is taken, is more specifically applied to justification on notice by appearance in person, and establishing the fact of sufficiency by oral examination, when exception is taken.

Such an examination cannot be required by a party as matter of right, unless the statute, or order, or rule of court, secures it.26 Where the statute or rule does require it, the time to require it cannot be cut off by justifying before exception.27

41. Notice of exception.]—No particular form of notice is required.28 But the exception is to the sureties.29 An objection to the instrument is not taken by exception, but by motion, or by disregarding it.

The statute giving the right usually prescribes the time within which notice of exception must be given.30

26 Stevenson v. Steinberg, 32 Cal. 373 (holding that it could not be required of an undertaking on appeal where the statute did not give it as in other cases). Dorlan r. Wilson, 9 N. Y. Civ. Pro. Rep. 69 (where security is given under requirement of a court order, no justification is required unless so directed by the order).

27 Washburne v. Langley, 16 Abb. Pr. 259 (security for costs).

28 See the general rules applicable to NOTICES, on page 190 of this volume, and to SERVICE, on page 378.

29 Young v. Colby, 2 Code Rep. 68.

30 The times prescribed by the N. Y. Code Civil Procedure are as follows: For an undertaking as security for costs (§ 3274, but only two days in New York City Court, § 3168), or given in order to secure a stay on appeal in the Supreme Court to the Appellate Division [N. Y. Code Civ. Pro., § 1351 (actions); Id., §§ 1360, 1361 (special proceedings)], or for a stay on any appeal to the Court of Appeals [Id., § 1335 (actions); Id., §§ 1360, 1361 (special proceedings)], or to discharge a levy of execution pending appeal in these courts and some others [Id., § 1311], notice of exception must be served within ten days after service of a copy of the undertaking, with notice of its filing.

So, plaintiff's notice, that he does not accept bail on arrest, must be served within ten days after the sheriff has delivered to him certified copies of the undertaking, order of arrest, and return thereof. N. Y. Code Civ. Pro., § 577. In the City Court of New York five days. Id., § 3168.

Notice of exception to the sufficiency of the sureties in an undertaking on the part of the defendants, or one of several, to discharge an attachment as to whole or part of the property attached, must be given to the sheriff within three days after receiving a copy of the undertaking with notice of the filing of it. Id., § 690.

In the case of an undertaking to obtain replevin or re-replevin, within three days after the replevying and the service of a copy of the affidavit, requisition, and undertaking (Id., § 1703), or the notice requiring a return, as the case may be (Id., § 1704).

The time allowed for serving notice of exception is computed from the filing of the undertaking (Lewis v. Lewis, 4 Oreg. 209), and notice given thereof if both are required (Webster v. Stephens, 3 Abb. Pr. 227, 5 Duer,

42.

effect.] The effect of giving notice of exception is to require the necessary sureties to appear in person for examination, notwithstanding adequate affidavits of sufficiency have already been filed and served.31

43. Notice of justification.]- For this purpose notice must be given to the attorney of the party who excepted,32 stating before whom they will appear for the purpose, and the hour and place.33

The statute usually prescribes the time, after service of notice of exception, within which notice of justification must be given.34 The court may extend the time.35

As the notice of exception may be served by mail, the mere lapse of ten days without actual receipt of notice of exception does not always exonerate the sureties from obligation to justify. Lyddy v. Long Island City, 102 N. Y. 726, 3 Cent. Rep. 674. See p. 378 of this volume, as to SERVICE.

31 Bronson v. Freeman, 8 How. Pr. 492; Matter of Faulkner, 4 Hill, 30; S. P., Washburne v. Langley, 16 Abb. Pr. 259.

32 Stark v. Barrett, 15 Cal. 361; Reynolds v. County Court of San Joaquin, 47 id. 604 (holding justification made without such notice futile).

33 Lower v. Knox, 10 Cal. 480 (holding justification in absence of party served with notice, not stating hour, invalid).

34 Failure to give at least five days' notice of justification within ten days after notice of exception (under § 1335), makes the undertaking nugatory. Lewin v. Tobin, 51 App. Div. 477, 64 N. Y. Supp. 740.

Notice of justification of bail on arrest must be served by the sheriff on defendant within ten days after receipt of notice that the sureties are not accepted. N. Y. Code Civ. Pro., § 578.

The same rule applies after exception to sureties in an undertaking given by defendant to discharge property from attachment (Id., § 690); or on replevying or demand of return of replevied property (Id., §§ 1703, 1704); and in the two last cases, of replevin, the justification must be in the county where the chattel was replevied, or where one of the sureties resides (Id., 1705).

For an undertaking of security for costs, notice of justification must be given within ten days after service of notice of exception (Id., § 3274; two days in N. Y. City Court, § 3168), and must fix a time not less than five, nor more than ten days thereafter, and a place within the county where the action is triable (Id., § 3274). If given to obtain stay on appeal in the Supreme Court, to the Appellate Division (Id., § 1351 [actions]; Id., §§ 1360, 1361 [special proceedings]), or for a stay on an appeal to the Court of Appeals (Id., § 1335), or to discharge a levy on personal property pending such appeals, and some others (Id., § 1311), the sureties must justify within ten days after notice of exception, and five days' notice of intent to justify must be given. Service of a notice on the ninth day after notice of exception that the sureties would justify five days thereafter, held a nullity in Lewin v. Tobin, 51 App. Div. 477, 64 N. Y. Supp. 740.

Exception and justification on notice are not provided for by the statute requiring an undertaking to be given to obtain arrest (Id., § 567); but if the security is deemed insufficient, the defendant may move to increase the

35 See EXTENSIONS, p. 48 of this volume. Contra, Roush v. Van Hagen, 17 Cal. 122 (holding the statute peremptory).

Service of notice of justification by mail must allow double time.36

The justification must be within the county and before the officer specified by the statute.37

But under notice of justification before one officer, attendance and justification at the same time and place before another competent officer in the absence of the one mentioned in the notice, may be good, if there is no allegation of having been misled.38

44. Exceptant's failure to appear.]—The exceptant is the actor in the proceeding. If, on due notice of justification, he does not appear or obtain an adjournment, he cannot afterward object, against the proceedings taken on the faith of the giving of the undertaking, that the sureties failed also to appear.39 Their failure to appear, if the exceptant also fails to appear, does not exonerate them, but they stand as presumptively sufficient sureties, and liable as such, on the strength of the partial or ex parte justification contained in their affidavits of sufficiency." 40

45. course of the party giving the undertaking.]- In case of non-appearance on the part of the exceptant, the party giving the undertaking may either rest on the default as a waiver of the exception, subject, however, to the power of the court to relieve therefrom, or he may produce his sureties and take a formal approval.

security; nor in the case of an undertaking given on procuring an injunction (Id., §§ 611, etc.), or to dissolve it (Id., § 629); nor on a warrant of attachment against property (Id., §§ 640, 668, foreign vessel), or a discharge of a domestic vessel therefrom (Id., §§ 662, 663), although they are as to undertaking given on vacating or discharging generally (Id., § 690); nor are they provided for as to an undertaking given by a partner not a party on his application to discharge his interest from an attachment or execution on the partnership property (Id., §§ 694, 1413); nor as to that given to indemnify a sheriff holding execution levied on property claimed by third persons (Id., § 1418).

36 Dresser v. Brooks, 5 How. Pr. 75 (dismissing the appeal unless sureties justify on a regular notice. Here the notice of justification was given on the 10th by mail, the appointed day being the 17th, in a case where ten days' notice was necessary when given by mail).

37 Tevis v. O'Connell, 21 Cal. 512.

38 Sutherland v. Sheffield, 2 Wend. 293.

39 Ballard v. Ballard, 18 N. Y. 491.

40 Gusthal v. Reinhardt, 1 Monthly L. Bul. 36 (giving judgment for plaintiff in an action on the undertaking, notwithstanding the objection that he had excepted to the sureties, and afterwards failed to attend at the justi fication).

In such a case, the effect of the default in exonerating the sheriff, if it be a justification in which his liability is concerned, cannot be relieved from the court. 41

46. Failure of appearance by the party giving undertaking.]— If the exceptant appears, and sureties ready to justify do not, the adverse party must obtain an adjournment or extension of time. He cannot, after default at the hour fixed, even if he has a good excuse, require the exceptant, by giving him fresh notice, to attend at a later time.42 He must apply to the court for relief.

47. Proceedings on the justification.]- The party whose sureties have been excepted to must produce them, or if more joined in the undertaking than the requirement which exacted the undertaking demanded, must produce enough of them to satisfy that requirement.

43

If he produces other sureties in lieu of any of the original sure. ties, their undertaking and justification may be accepted by the court in lieu of the original sureties, and this should be done usually in the absence of anything indicating bad faith, without prejudice, however, to due opportunity to the exceptant to investigate the question of sufficiency.

45

The exceptant may waive the justification."

The examining attorney should record all answers given by the surety, whether favorable to his contention or otherwise.46

When a surety mentions specific property as not exempt, he will be estopped from subsequently claiming an existing exemption.47

41 Lewis v. Stevens, 93 N. Y. 57.

42 Hees v. Snell, 8 How. Pr. 185.

43 Under a statute which does not require more than one surety, if two execute, and exceptions are taken, it is enough if one justifies. Riggins v. Williams, 2 Duer, 678 (so holding [under 2 R. S., 678] as to security for costs, and saying that the principle applies to all cases where the terms of an order, requiring security to be filed for any purpose, are general" [i. e., do not require more than one]).

44 The failure of one surety to justify entitles the party to substitute one who can justify. Dictum in Hardt v. Schulting, 59 How. Pr. 353.

45 Gopsill v. Decker, 4 Hun, 625.

S. P., Blair v. Hamilton, 32 Cal. 50, holding the declaration of the party that he knew the surety to be good, a sufficient waiver, against the advice of his attorney.

46 Schmid v. Livingston, 19 Misc. 353, 43 N. Y. Supp. 494.

47 McMahon v. Cook, 107 App. Div. 150, 94 N. Y. Supp. 1018.