By virtue of an order of arrest, it is the duty of the sheriff to arrest the defendant and keep him in custody until he shall be discharged by law, unless he shall give bail or make a deposit under sections 186, 187 of the Code. The undertaking of the bail is "that the defendant shall at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein."
Section 201 provides: "If, after being arrested, the defendant escape, or be rescued, or bail be not given or justified, or a deposit be not made instead thereof, the sheriff shall himself be liable as bail." And, when the sheriff becomes bail under this section, he is liable, in the same manner and to the same extent, as the bail would have been, if bail had been put in, and had justified; and he is entitled to the same rights and *Page 165 powers as bail. (Metcalf v. Stryker, 31 N.Y., 255.) It was finally settled, in this case of Metcalf v. Stryker, that, when the sheriff is sued as bail, he cannot give evidence of the debtor's insolvency in mitigation of damages.
The sheriff, when sued for an escape, or as bail, cannot object that the order of arrest was improperly or irregularly granted, or that there was error or irregularity in the judgment or execution. The order of arrest justifies the sheriff in making the arrest, and, unless set aside, justifies the execution. (Jarvis v. Cook, 1 Cow., 309; President, etc., of theOntario Bank v. Hallet, 8 id., 192; Gregory v. Levy, 12 Barb., 610; Jewett v. Crain, 35 id., 208; Smith v. Knapp,30 N.Y., 581.)
The return, "not found," upon the execution against the person, was sufficient evidence against the sheriff of the escape of the debtor, and that the sheriff had not retained him in custody. (2 R.S., 382, § 31; Bradley v. Bishop, 7 Wend., 353; Bloomer v. Lewis, 10 id., 525.)
It is claimed, on the part of the defendant, that this is not an action against the sheriff as bail, but for an escape. This claim does not appear to have been made at the trial. It should have been distinctly made there, before it can be available here. This was treated by the court at the trial as an action against the sheriff as bail. If, upon the complaint, it was uncertain whether this was such an action, or an action for an escape, if the objection had been made, the court could have allowed an amendment to obviate the uncertainty. But, while the complaint does not allege, in so many words, that the defendant is held as bail, yet all the facts making him liable as bail are alleged, and the amount mentioned in the order of arrest only (which is more than $1,000 less than the judgment) is claimed; and this sum is claimed, not upon the allegation of any damages, but on the ground that the defendant, "by reason of the premises, became liable to the plaintiff" for that sum. If the action had been for an escape, it would have been more appropriate to have claimed the whole amount of the judgment, and to have alleged damages *Page 166 to that amount. I am of the opinion, therefore, that this must be held to be an action against the defendant as bail.
Having thus examined all the allegations of error, and finding none, I am in favor of affirming the judgment, with costs.
All concur for affirmance.
Judgment affirmed, with costs.