This action was brought by the plaintiff against the defendant, as sheriff of Monroe county, under the following circumstances: The said plaintiff commenced an action in the Supreme Court on the 15th day of October, 1859, against one Marvin C. Bills for the recovery of a gold watch wrongfully detained from him, and by an indorsement in writing upon the proper affidavit delivered for that purpose, accompanied by the requisite undertaking, he required *Page 144 the said sheriff to take the same from the said Bills and deliver it to him the said plaintiff. The said sheriff thereupon demanded the said property of Bills, but it was not delivered to him, nor could he find it so as to take it and make such delivery, and he made a return of his doings in that behalf. The plaintiff subsequently, and on the 29th day of the same month, presented to a judge of the said court an affidavit of the above-mentioned facts, and of other facts showing that the said Bills had concealed, removed and disposed of said watch, so that it could not be found or taken by the said sheriff, and with the intent to deprive the plaintiff of the benefit thereof (being the cause or ground of arrest mentioned in the third subdivision of section 179 of the Code, as then amended and in force); and thereupon, and upon the giving of the undertaking required by law, said judge made an order directing the said sheriff to arrest the said Bills, and "to hold him to bail in the amount of $250, the undertaking to be such as is required by statute in such action," and also to make a return of the said order to the plaintiff's attorney by the tenth day of November, 1859, at his office. The defendant arrested the said Bills under and pursuant to the said order, and afterward discharged him from such arrest on giving a written undertaking executed by two sureties, by which they bound themselves for the delivery of the said property to the plaintiff, if such delivery should be adjudged, and for the payment to him of such sum as might for any cause be recovered against the defendant in the said action.
The sheriff after such discharge delivered the said order of arrest to the plaintiff's attorney, with a return indorsed thereon to the effect that he had arrested the defendant, as he was therein commanded, and had taken bail as he was directed, together with a copy of the said undertaking. The said bail were excepted to and failed to justify, but surrendered, and no other bail were ever substituted for them.
A judgment was subsequently rendered in the action against Bills for the delivery of the watch to the plaintiff, or in default thereof for the payment of its value, assessed at *Page 145 eighty-five dollars, and also directing the payment by him of seventy-one dollars and forty-seven cents, the costs of the suit, and an execution was thereupon issued to the said sheriff directing such delivery, or the collection of its assessed value, if such delivery could not be had, and for the satisfaction of said costs out of the property of the said Bills, and the said sheriff afterward returned it wholly unsatisfied, and with the further return thereon that he could not find the said watch.
No other execution, except that above mentioned, was ever issued upon the said judgment. The preceding facts are set forth in the plaintiff's complaint, and he thereupon claimed to recover the said assessed value of the watch, and the said costs from the defendant.
The answer of the defendant did not deny any of the said allegations, but set up as a defence that after the rejection by the plaintiff of the bail given by the said Bills upon his said arrest, and before the expiration of the time limited for their justification, they refused to justify, but they surrendered the said Bills to him, the said sheriff, and that he thereupon again took him the said Bills into his custody and held him by virtue of the said order of arrest, and that he continued to hold him in such custody.
The justice who tried the issues found the facts alleged in the complaint to be as therein stated, and also found, in reference to the matter of defence set up in the answer, that the said bail, on the 19th day of November, 1859, and before the time expired for them to justify, "surrendered said Bills to the custody of the sheriff, and the said Bills was thereupon immediately taken into custody by the sheriff, and is and has ever since and now is held by him on the jail limits; that on such surrender he was placed in the jail of said county of Monroe, and afterward and on the same day liberated on the jail limits, upon executing the usual limit bond, but no papers were had at said surrender, except the original undertaking upon which the certificate of surrender was made by said sheriff acknowledging the surrender of said Bills to his custody *Page 146 and no order was made by any judge that the said bail be exonerated."
He thereupon found, as a conclusion of law, that the defendant was entitled to judgment with costs. Judgment was entered upon said decision, which, on appeal to the General Term of the seventh district, was reversed and a new trial was ordered, from which order an appeal was taken to this court by the plaintiff, and he in his notice of appeal stipulated that if the said order was affirmed, judgment absolute should be entered against him.
The judge on the trial stated, in giving his reasons for the decision made by him, that he was of opinion that the defendant as sheriff was liable only for the safe keeping of the defendant's body, and that the matters set up by him in his answer constituted a defense to the action.
The majority of the court at General Term, on the contrary, held that the defendant was liable for the delivery of the property to the plaintiff, or for the payment of its assessed value, in case of its non-delivery, and was also bound to pay the costs of the action against Bills.
The question as to the nature and extent of the defendant's liability, upon the facts in this case, is to be determined by the construction of the provision of the Code of Procedure applicable to the subject, in force when the said arrest was made and the subsequent proceedings were had. It will, therefore, be necessary to refer to them with particularity.
It is provided, by section 185, that the sheriff, to whom an order of arrest in an action is delivered, shall execute it by arresting the defendant and keeping him in custody until discharged by law; and the next section (§ 186) declares that the defendant, at any time before execution, shall be discharged from the arrest, either upon giving bail, or upon depositing the amount mentioned in the order of arrest, as provided in some of the subsequent sections.
Section 187 provides that the defendant may give bail, by causing a written undertaking to be executed by two or more sufficient bail, stating their places of residence and occupation, *Page 147 to the effect 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; or, if he be arrested for the cause mentioned in the third subdivision of section 179, an undertaking to the same effect as that provided by section 211, by which the sureties therein "are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may for any cause, be recovered against the defendant."
This section contemplates two classes of bail: one in the cases specified in subdivisions 1, 2, 4 and 5 of section 179, and the other for the cause mentioned in the third subdivision thereof.
They are required to give different undertakings; that of the first class is to be to the effect declared in the first clause of said section 187, and that of the latter is to be "to the same effect as that provided by section 211," and which is stated in the preceding extract therefrom.
The defendant Bills was arrested for the cause mentioned in the said third subdivision of section 179, and he obtained his discharge from such arrest by the delivery to the sheriff of an undertaking by two bail, deemed by him to be sufficient, to the effect provided in said section 211.
It is further provided, by section 201, that "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; but he may discharge himself from such liability by the giving and justification of bail, as provided in sections 193, 194, 195 and 196, at any time before process against the person of the defendant to enforce an order or judgment in the action." Those sections relate to the justification of the bail in the undertaking given on the arrest, if they are not accepted by the plaintiff, or of other bail substituted for them, in and by a new undertaking in the form prescribed in said section 187, their qualification *Page 148 and the proceedings to procure their allowance. It is not claimed that the defendant had discharged himself from such liability by a compliance with those sections. It is therefore unnecessary to refer to their provisions. Nor were the facts found by the judge on the trial in reference to the surrender, alleged to have been made by the bail to the sheriff, and the proceedings thereon, sufficient to discharge him from liability.
It is provided by section 188 of the Code, that "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 in which he was arrested," in the manner therein particularly specified, but it is expressly declared, in the last clause thereof, that this section shall not apply to an arrest for the cause mentioned in the third subdivision of section one hundred and seventy-nine" (being the cause for which the arrest in question was made), so as to discharge the bail from an undertaking given to the effect, provided by section 211. This declaration shows that the bail in an undertaking given in that case cannot be exonerated by the surrender of a defendant to the sheriff. His power and authority, under the order authorizing the arrest, end on the discharge of the defendant, upon the receipt and acceptance of such undertaking. I am not aware of any other provision, nor have we been referred to any, under which the proceedings had for the surrender of Bills were authorized. When that was made, the order for his arrest had been returned to the plaintiff's attorney by the sheriff, and he had lost all control over it. The plaintiff is therefore not affected by those proceedings, and they are to be disregarded.
It follows that, under section 201, above referred to, the defendant, on the failure of the bail taken by him to justify, became himself liable as bail. The extent of his liability in that relation is to be determined by that of the bail in the undertaking given to him. He, so far as the plaintiff is affected, stands in their place, and has become liable to the *Page 149 same extent to the plaintiff as they would have been if they had been accepted by him. That liability, under section 187, on the facts constituting the cause of arrest, was that provided for by section 211, being for the delivery to the plaintiff of the watch in question, if such delivery was adjudged, and for the payment to him of such sum as might, for any cause, be recovered against the defendant. This construction is consistent with the nature of the action for the recovery of personal property, when the immediate delivery thereof is claimed. The primary object, in such case, is the recovery of its possession in specie, and the security required to be given by the defendant, in order to retain it, is that provided for by said section 211, and after it has been given it cannot be discharged, except upon such delivery or the payment of its value.
It is also confirmatory of such construction that the last clause of section 187 (originally section 162) and of subdivision 2 of section 188 (originally section 163) did not form a part of the Code, as first enacted, but were both added by the amendatory act of 1849. The first of those amendments clearly indicates an intention on the part of the legislature that the undertaking by the bail on an arrest, for the cause referred to therein, was to be different from that for the other causes specified in section 179, and it declares what obligation should in that case be assumed, and the other shows that, when such an obligation is entered into, the bail cannot discharge themselves therefrom by a surrender of the defendant.
The above considerations lead me to the conclusion that the order of the General Term should be affirmed, and that judgment absolute must, under the stipulation given by the defendant, be rendered against him.