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$ 195. For the purpose of justification, each of the bail shall attend before the judge, or a justice of the peace, 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 justice of the peace, in bis discretion, may think proper. The examination shall be reduced to writing, and subscribed by the bail, if required by the plaintiff.
N. B. It is evident that the words "justice of the peace," in
given.—Burns v. Robbins, 1 C. R. 62.
The justification must, under rule 89 of the supreme court, take place “ within the county where the defendant shall have been arrested, or where the bail reside." The plaintiff or his agent is, therefore, bound to attend, wherever notice may be given in due accordance with this provision. If, on the contrary, the notice be given for the wrong county, it will be a nullity, and the sheriffwill not be discharged; unless the plaintiff waive the objection, by appearing on the examination, or otherwise by direct acquiescence in the proceeding.
If, on the justification, more than two bail be brought forward, they may, under sec. 194, be allowed by the judge “ to justify severally, in amounts less than that expressed in the order, if the whole justification be equivalent to that of two suficient bail”—2. e., equivalent to at least double the amount specified in the order.
If the bail fail to justify, the plaintiff should obtain from the judge a certificate to that effect, as evidence of the fact, and in order to the establishment of the sheriff's liability, if necessary. In this case, it would seem that the sureties themselves are discharged from all responsibility.–V. Ward v. Syme, 4 Comst. 161; 1 C. R. (N. S.) 266. Where the contrary is the case, the course to be adopted on behalf of the sheriff or defendant, is thus prescribed by sec. 196 :
196. If the judge or justice of the peace find the bail sufficient, he shall annex the examination to the undertaking, endorse his allowance thereon, and cause them to be filed with the clerk; and the sheriff shall thereupon be exonerated from liability.
It will be observed that, under these circumstances, the undertaking passes from the custody of the sheriff into that of the clerk, in whose hands it remains, subject to the further disposition of the court. There is no reported decision on the subject; but it would probably be held, that the proper clerk to be entrusted with the custody of the instrument in question, will be the clerk of the court, or county, in which the action is brought ; or in which the venue is laid, if in the supreme court.
The mode in which it is competent for the bail to discharge themselves from their liability, by a surrender of the defendant, is thus prescribed by sections 188 and 189 :
§ 188. At any time before a failure to comply with the 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 production of a copy of 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 certificate, order that the bail be exonerated ; and, on filing the order and the papers used on said application, they shall be exonerated accordingly. But this section shall not apply to an arrest, for cause mentioned in subdivision 3 of section 179, so as to discharge the bail from an undertaking, given to the effect provided by section 211.
§ 189. 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.
It will be seen that, in cases falling under subdivision 3 of sec. 179, the mere surrender of the defendant, does not discharge the bail from further pecuniary liability, as before noticed.
The plaintiff's remedy against the bail, if they fail to surrender the defendant, is thus provided for by section 190:
$ 190. In case of failure to comply with the undertaking, the bail may be proceeded against, by action only.
For this purpose, an application should be previously made to the court, for an order that the undertaking may be delivered out to the plaintiff, by the sheriff or clerk, as the case may be. The order may be obtained ex parte, and need not be served on the opposite party. The facts establishing the failure should, however, be shown by a short affidavit to that effect.
In an action against sureties, under a bond given on the arrest of a defendant, the fact that the party bringing the action is the aggrieved party, must be averred on the complaint. If not, the action cannot be sustained.-Raynor v. Clark, 7 Barb. S.C.R. 581; 3 C. R. 230.
The following provisions are made by sec. 191, in relation to the circumstances under which the bail may be exonerated, after action so brought against them:
§ 191. The bail may be exonerated, either by the death 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, 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.
In Barker v. Russell, 1 C. R. (N. S.) 5, the bail were discharged, on the ground, there taken, that the defendant was not liable to arrest at all, on account of an omission to aver fraud on the pleadings. This decision was, however, reversed by the general Term, 1 C. R. (N. S.) 57, though a temporary stay of proceedings was granted, to enable them to surrender their principal.
In Holbrook v. Homer, 6 How. 86, 1 C. R. (N. S.) 406, it was held, on the contrary, that an exoneration could not be applied for, on the ground that the defendant was not liable to be arrested. The only remedy, under such circumstances, was a motion by the defendant, under sec. 204. The case did not fall within the provisions of sec. 191.
Where, however, the defendant is either unable or unwilling to procure bail, it lies in his power to obtain his discharge, at the time of his arrest, by means of a deposit in the hands of the sheriff. The following are the provisions on this subject, as contained in sections 197 and 198 :
$ 197. 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.
§ 198. The sheriff shall, within four days after the deposit, pay the same into court; and shall take from the officer receiving the same, two certificates of such payment, the one of which he shall deliver to the plaintiff, and the other to the defendant. For
de fault 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.
In this event, it is competent for the defendant afterwards to withdraw the amount so deposited, by giving bail in lieu thereof. This provision is made by sec. 199:
$ 199. If money be deposited, as provided in the last two sections, bail may be given and justified upon notice, as prescribed in sec. 193, 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.
The application of the amount deposited as above, where bail is not subsequently given, is thus prescribed by sec. 200:
$ 200. 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.
If, on judgment being recovered, and execution issued against the person, the defendant be still in custody, the provisional arrest will, of course, be merged in that under the subsequent process. If, on the contrary, the defendant be out on bail, his arrest on the execution may take place, and, if made, will exonerate the sureties.
It remains to consider the cases in which a defendant may be discharged from arrest, under special circumstances, or by operation of law.
· Insanity, either at or subsequent to the arrest, forms no ground for an unconditional discharge. The only manner in which a defendant can be removed from the legal custody is under the act in relation to lunatic asylums, passed 7th April, 1842, and that, during his insanity only.--Bush v. Pettibone, 4 Comst. 300; 1 C. R. (N. S.) 264.
A defendant will be released from imprisonment by operation of law, on his discharge as an insolvent under the provisions of title I. chap. V. part II. of the Revised Statutes, particularly of articles 3, 4, 5, 6, and 7 of that title.- V.2 R. S. p. 1, to 52. The proceedings in relation to a discharge of this nature, are in no wise affected by the Code, and belong entirely to the old practice.
OF CLAIM AND DELIVERY OF PERSONAL PROPERTY.
The provisions of the Code, in this respect, are clearly intended as a substitute for the provisional relief heretofore obtained, in the action of replevin, under the old practice.— Roberts v. Randall, 3 Sandf. S. C. R. 707; 5 How. 327; 3 C. R. 190; 9 L. 0. 144 ; Wilson v. Wheeler, 6 How. 49; 1 C. R. (N. S.) 402. In the latter case, it was considered that the former practice on replevin was still in force in many respects, in an action of this nature ; which seems clearly to be the case,
inasmuch as the provisions made by the chapter of the Code now under immediate consideration, are only partial in their operation, and relate to the provisional remedy alone, without in any manner affecting the subsequent proceedings for the decision of the controversy, as to whether the plaintiff is or is not entitled to the property itself, in respect of which the provisional remedy is sought in the first instance.
The different points in relation to the action of replevin, considered as an action, and apart from the provisional remedy obtainable at the outset, have been heretofore considered under the heads of Pleading, Judgment, Arrest, and elsewhere. A specific equitable lien cannot be enforced in an action for replevin ; Otis v. Sill, 8 Barb. S.C. R. 102: that remedy is only applicable to cases where the possession of the property itself is sought, not where a charge is merely claimed upon it. In replevin, the possession of the property may be sought, with or without damages for the withholding, (sec. 167, sub-division 6 ;) and, un