f 664. [Am'd, 1877, 1895.] General provision as to privilege from arrest; discharge of privileged person. This title does not a bridge or affect a privilege from arrest given by law, or a right of action for a breach thereof. A privileged person is entitled to be discharged from arrest, where other provision is not made therefor by law, by the court, or a judge thereof; or by the county judge of the county where the arrest was made. The order must be made, upon proof, by affdavit, of the facts entitling the applicant to the discharge; and the arrest and discharge are not a bar to a new arrest, after the privilege has ceased. The court or judge may make the order without notice, or may require notice to be given to the sheriff, or to the plaintiff, or to both. New. Am'd by L. 1877, c. 416; L. 1895, c. 948 (in effect Jan. 1, 1806). § 565. [Omitted; see Table, p. iii.] Privilege of officers of courts. An officer of a court of record, appointed or elected pursuant to law, is privileged from arrest, during the 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. From 2 R. S. 290 (Part 3, c. 3, tit. 2), § 86. 566. answer. Defendant arrested to have twenty days to Except where an order of arrest can be granted only by the court, a defendant, arrested before answer, has twenty days, after the arrest, in which to answer the complaint; and judgment must be stayed accordingly. From Co. Proc., § 183. i 567. [Am'd, 1877.] When application to be made vacate order of arrest, etc. Zu [NAL Except where an order of arrest can be granted only by the court, a defendant, arrested as prescribed in this title, may, at any time before final judgment, or, if he was arrested within twenty days before final judgment, at any time within twenty days after the arrest, apply to vacate the order of arrest; or to reduce the amount of 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. From Id., §§ 183, 204. Am'd by L. 1877, c. 416. § 568. [Am'd, 1877.] How and to whom motion must be made; opposing it by new proofs. ' An application, specified in the last section, may be founded only upon the papers upon which the order was granted; in which case, it must be made to the court, or, if the order was granted by a judge out of court, to the same 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 6631 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 might show upon the trial. Substitute for Co. Proc., § 205. Am'd by L. 1877, c. 416. Supersedeas, unless §§ 569, 570, 571. [Stricken out by L. 1877, c. 416.] § 572. [Am'd, 1877, 1882, 1886.] defendant is charged in execution, etc. Except in a case where an order of arrest can be granted only by the court, if the plaintiff unreasonably delays the trial of the action or neglects to enter judgment therein within ten days after it is in his power to do so, or neglects to issue execution against the person of the defendant within ten days after the return of the execution against the property, and in any event neglects to issue the same within three months after the entry of the judgment, 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 his remedies therein by collusion, or for the purpose of allowing the debtor to remain in prison under the mandate in any other action, before the issuing of the mandate in favor of such creditor, so as to produce a continued and extended imprisonment by virtue of the separate mandates in the different actions, the defendant must upon his application, made upon notice to the plaintiff, be discharged from custody if he has already been taken under the mandate against him in such action; or if he has not yet beer imprisoned therein, be relieved from imprisonment by virtue of such mandate, by the court in which the action was commenced, unless reasonable cause is shown why the application should not be granted. A defendant discharged as prescribed in this section shall not be arrested upon an execution issued upon the judgment in the action. From Co. Proc., § 288. Am'd by L. 1877, c. 416; L. 1882, c. 397: L. 1886 c. 672. 146 ARTICLE THIRD. Discharging the defendant upon bail or deposit; justification of Sec. 573. Defendant to be discharged on bail or deposit. 574. When defendant may elect to give bail, etc., or bond for liberties. 577. Filing, etc., of papers; plaintiff's acceptance or rejection of bail. 580. Justification of bail. 581. Allowance of bail. 582. Deposit of money with sheriff. 583. Payment of deposit into court by sheriff. 584. Substituting bail for deposit. 585. How deposit disposed of. 586. When deposit to be paid to a third person. 587. Sheriff, when liable as bail; his discharge from liability. 588. Proceedings on judgment against sheriff. 589. Bail liable to sheriff. 590. Filing papers if bail not given. § 573. Defendant to be discharged on bail or deposit. 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 bail, or upon depositing the sum specified in the order of arrest. The 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. From Co. Proc., § 186. § 574. When defendant may elect to give bail, etc., or bond for liberties. 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. New. § 575. Undertaking of the bail; what to contain. 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 effect: 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 default of his so doing, that he will, at all times, render himself amenable to proceedings to punish him for the omission. 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. 1 Error in engrossing for "seek." * Word "the" omitted by error in engrossing. 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. Substitute for Co. Proc., § 187. § 576. [Am'd, 1877, 1879.] Examination of persons offered as bail. 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 acknowledgment of the undertaking, must, if the sheriff so requires, examine under oath, to a reasonable extent, the persons 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. From 2 R. S. 380 (Part 3, c. 6, tit. 6), § 20. Am'd by L. 1877, c. 416; L. 1879, c. 542. § 577. [Am'd, 1879.] Filing, etc., of papers; plaintiff's acceptance or rejection of bail. 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. From Co. Proc., § 192. Am'd by L. 1879, c. 542. § 578. Notice of justification; new undertaking, if other bail is given. Within ten days after the receipt of the notice, 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 judge, 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 575 of this act. From Co. Proc., § 193. § 579. Qualifications of bail. 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 from 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. From Id., § 194. § 580. Justification of bail. For the purpose of justification, each of the bail 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 must be reduced to writing, and subscribed by the bail. From Co. Proc., 195. § 581. Allowance of bail. If the judge finds the bail sufficient, he must annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk. The sheriff is thereupon exonerated from liability. From id., § 196. 582. [Am'd. 1904.] Deposit of money with sheriff. A defendant, or other person arrested or attached on civil process, who is entitled to release on bail, or to jail liberties on giving the undertaking required by section 150 of this act, may instead of giving bail, or such undertaking, deposit with the sheriff the sum specified in, or endorsed upon such process, or which might be required in such undertaking. The sheriff must thereupon give the prisoner a certificate of the deposit and discharge him from custody. A deposit so made in lieu of an undertaking for jail liberties must be applied, under direction of the court, in satisfaction of any judgment for escape of the prisoner from such liberties and in payment of any expense incurred in the defense of an action for such escape, and thereafter the surplus, if any, and in case there has been no such escape, the whole of such deposit must be refunded to the prisoner or his representative, and in case of a deposit in lieu of bail on attachment against the person, it shall abide the disposition of the court, or a judge thereof, or a county judge. From Id., 197. Am'd by L. 1904, c. 384 (in effect April 26, 1904). § 583. Payment of deposit into court by sheriff. The sheriff must, within four days after the deposit, pay it into court. He must take, from the officer receiving 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. From Id., § 198. § 584. Substituting ball for deposit. If money is deposited, as prescribed in the last two sections, bail may be given, and may justify upon notice, at any time before the expiration of the right to be discharged on 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. 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 court, 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. Substitute for Co. Pe., § 200. |