their exoneration, or he may surrender himself, to the officer to whose custody he was committed at the time of giving bail, in the following manner: 1. A certified copy of the undertaking of the bail must be delivered to the officer, who must detain the defendant in his custody thereon, as upon a commitment, and by a certificate in writing, acknowledge the surrender: 2. Upon the undertaking and the certificate of the of ficer, the court in which the indictment or the appeal, as the case may be, is pending, may, upon a notice of five days to the district attorney of the county, with a copy of the undertaking and certificate, order that the bail be exonerated; and on filing the order and the papers used on the application, they are exonerated accordingly. § 653. For the purpose of surrendering the defendant, the bail, at any time before they are finally charged, and at any place within the state, 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. § 654. If money have been deposited instead of bail, and the defendant at any time before the forfeiture thereof, surrender himself to the officer to whom the commitment was directed, in the manner provided in the last two sections, the court must order a return of the deposite to the defendant, upon producing the cer tificate of the officer showing the surrender, and upon a notice of five days to the district attorney, with a copy of the certificate. ARTICLE VII. FORFEITURE OF THE UNDERTAKING OF BAIL, OR OF THE DEPOSITE OF MONEY. SECTION 655. In what cases, and how ordered. 656. When and how forfeiture may be discharged. 657. Forfeiture of bail, to be enforced by action. 658. Deposite of money when forfeited, how disposed of. 660. Application therefor, how made and on what terms granted. As the practice now stands, there is no rule whatever, as to the time or circumstances under which the forfeiture of bail may be declared. The condition of the recognizance is, in substance, that the defendant will appear in court on a specified day, and that he will abide the order of the court on the indictment, and not depart therefrom without its leave. The result in practice is, that unless he can make an arrangement with the district attorney, as to the time when his appearance will be necessary, he may be compelled to remain in court continually, until the indictment is finally disposed of. There is nothing to prevent the forfeiture of his bail, at any moment during the term, at the option of the district attorney, whether his appearance be then necessary or not. This should not be so. The provisions of this code, in other respects, distinctly inform the defendant when his attendance in court is necessary, and the sections which follow, restrict the right of forfeiture to the failure of the defendant to appear at those times, and then only. Sec. 655. And even then, power is given to the court, where a sufficient excuse for his default is shown, to discharge the forfeiture upon equitable terms. Sec. 656. The remedy to enforce the forfeiture is also restricted to an action. Sec. 657. Sec. 657. This is now the practice, except in the city of New York, in which, by a special statute, a judgment may be summarily, and without any previous notice to the parties, entered upon the recognizance on its being declared forfeited. Laws of 1844, p. 475, sec. 8. This exception to the general rule probably arose from the fact, that in view of the kind of bail too often taken in that city, the least delay in enforcing the forfeiture rendered the chances of its ultimate enforcement utterly desperate. By such a course of proceeding, however, the bail are deprived of every opportunity of making a defence; and though they could show that the bond was a forgery, or that its condition had been performed, they are subjected to a final and irreversible judgment. With the safeguards which have been thrown arround the taking of bail, as regulated by this code, it is hoped, that in at least a majority of cases, the necessity for a resort to a proceeding so summary and unjust, will be obviated. But whether it is or not, no good reason is perceived for a difference between the mode of enforcing the liability of bail in a criminal, from that adopted in a civil case. The provisions in respect to a remission of a forfeiture, sec. 659, 660, are taken from the statutes formerly applicable to the courts of common pleas. 2 R. S., 3d. ed., 580, 581, sec. 37-41. § 655. If, without sufficient excuse, the defendant neglect to appear for arraignment, or for trial or judgment, or upon any other occasion where his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes; and the undertaking of his bail, or the money deposited, instead of bail, as the case may be, is thereupon forfeited. § 656. If, at any time before the final adjournment of the court, the defendant appear and satisfactorily excuse his neglect, the court may direct the forfeiture of the undertaking or deposite to be discharged, upon such terms as are just. § 657. If the forfeiture be not discharged, as provided in the last section, the district attorney may, at any time after the adjournment of the court, proceed, by action only, against the bail upon their undertaking. § 658. If, by reason of the neglect of the defendant to appear, as provided in section 655, money deposited instead of bail is forfeited, and the forfeiture be not discharged or remitted, as provided in sections, 656 and 659, the county treasurer with whom it is deposited, may at any time after the final adjournment of the court, apply the money deposited to the use of the county. §659. After the forfeiture of the undertaking or deposite, as provided in this chapter, the county court of the county, or in the city of New-York, the court of common pleas of that city, may, upon good cause shown, remit the forfeiture or any part thereof, upon such terms as are just. § 660. The application must be upon at least five days notice to the district attorney of the county, with copies of the affidavits and papers on which it is founded; and can be granted, only upon payment of the costs and expenses incurred in the proceedings for the enforcement of the forfeiture. ARTICLE VIII. RE-COMMITMENT OF THE DEFENDANT, AFTER HAVING SECTION 661. In what cases. 662. Contents of the order. 663. Defendant may be arrested in any county. GIVEN BAILy 664. If for failure to appear for judgment, defendant must be committed 665. If for other cause, he may be admitted to bail. 666. Bail in such case, by whom taken. 667. Form of the undertaking. 668. Qualifications of bail, and how put in. The principle feature of this chapter, which is new, is the provision contained in section 661, authorising the re-commitment of the defendant, when it appears that his bail or either of them are dead, or insufficient, or have removed from the state. It is more than doubtful whether this power now exists. In a recent case in the city of New-York, where an application for a re-commitment was made, upon a ground similar in principle, the objection was taken, that the court could not make the order, having exhausted its jurisdiction in this respect by taking bail; and Rex v. Salter, 2 Chit. Rep. 109, was cited as sustaining the objection. The necessity of such a power is apparent. It would be a reproach to the administration of criminal justice, that where a fraud had been practiced upon the court in the matter of bail, or where, without the power to re-commit, the defendant might elude the consequences of crime, the court should be left without authority to prevent the wrong. The other provisions of this chapter sufficiently explain themselves. § 661. The court to which the committing magistrate returns the depositions and statement, or in which an indictment or an appeal is pending, or to which a judgment on appeal is remitted to be carried into effect, may, by an order entered upon its minutes, direct the arrest of the defendant, and his commitment to the officer to whose custody he was committed at the time |