The plaintiff bases his right of recovery upon section 201 of the Code of Procedure. It is there provided 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 *Page 150 be liable as bail," (§ 201.) In the present case, the defendant was arrested and gave bail, but the bail did not justify. The sheriff, by the language quoted, thereupon becomes liable as bail. The sheriff claims that he has satisfied this liability, by having the defendant within his custody and amenable to a process to be issued against his person. The plaintiff insists that his liability, as bail, requires a performance of the obligation entered into by the sureties who executed an undertaking to discharge the defendant from arrest, to wit, for the delivery of the property sought to be recovered, and for the payment of any sum adjudged against the defendant. The judge at the circuit concurred in the view taken by the sheriff. The General Term adopted the view taken by the plaintiff.
The order of arrest in the original action was for the cause mentioned in the third subdivision of section 179, to wit: the recovery of personal property unjustly detained, and concealed, with intent that it should not be found by the sheriff, and which could not be found. In that case it is provided (§ 187) that the defendant, to procure his discharge, must give an undertaking to the same effect as that provided by section 211, to wit: for the delivery of the property and the payment of such sum of money as may be adjudged against the defendant. In all other cases the defendant may be discharged upon executing an undertaking; he shall, at all times, during the pendency of the action, be amenable to the process of the court, and to such as may be issued to enforce its judgment. In the latter proceeding, the bail may surrender their principal to the sheriff, and be exonerated from their liability. (§§ 189, 190.) In like manner, the sheriff, in such case, may give new bail in place of those excepted to (§ 193), and can receive the actual custody of the defendant in discharge of the bail given by him. This proceeding is reasonably simple, and is in accordance with all general rules.
In the special case of an arrest for removing and concealing property sought to be recovered, the proceeding is not so plainly defined. The defendant gives an undertaking, not *Page 151 to be amenable to the process of the court, but to make delivery of the property. When, as in this instance, the sureties to such an undertaking fail to justify, what are the sheriff's powers in protecting himself, or in securing the plaintiff?
Section 211, which regulates the undertaking to be given in such case, is a part of the Code regulating the action for the claim and delivery of personal property. The sheriff is directed to take it from the possession of the defendant, upon receiving from the plaintiff a sufficient undertaking to the defendant, conditioned, among other things, for the return to him of the property, if it shall be so adjudged. The defendant may, however, require the return of the property to himself, from the sheriff upon executing to the plaintiff a similar undertaking. (§§ 209 to 211.) In each of these cases, in the event of an exception to the sufficiency of the sureties, it is provided that, the sheriff shall retain the property in his hands until they justify, and if they fail to justify, he shall deliver the property to the opposite party. If he fails to do his duty in this respect, he becomes liable to the party aggrieved, for the damages sustained by him. He has the property in his hands, is provided with ample means to protect himself, by requiring an undertaking and a justification of the sureties, or by redelivering the property. If he fails to do this duty, there is eminent justice in compelling him to redeliver the property or to pay its value.
In a case like the present it is quite different. The sheriff has been guilty of no neglect; he has incurred no default; he could have done nothing more than he has done. It was his first duty to arrest the defendant; he performed it; it then became his duty to hold the defendant until he gave bail; he performed that duty also. The bail refused or neglected to justify; he could not compel them to justify; he could not compel the defendant to give other sureties; he could only hold his person, and that he continued to do. Will it be said that he could himself have given a new undertaking, with sufficient sureties? That would have been a voluntary assumption of the obligation now sought to be imposed upon *Page 152 him, to wit, the payment of the debt. The undertaking, by section 211, must have been to that effect, and not for the defendant's subjection to the process of the court. This was an obligation that he was not bound to assume. I do not see that there was the slightest neglect or omission of the sheriff, or that, in any particular, he failed in the strict performance of his duty. To hold him liable in such a case would be intolerable. Such could never have been the intention of the legislature. The explanation is this: When it is said that he shall be liable as bail, it means the bail who undertake that the defendant shall be in person amenable to the process of the court. The word bail has a technical meaning in the law. When, under the old forms, the party arrested gave bail to the sheriff, he undertook thereby to put in "bail" to the action, and to perfect "bail," using that precise word in his undertaking. Its meaning then was, and always has been, that the "bail" undertook that the defendant should be personally amenable to the process and judgment of the court. (Dunlap's Practice; Paine Duer's Practice.) The sections of the Code, from 186 to 204, prescribe the undertaking and qualifications of "bail." The word "bail" is used throughout all this range of sections, and the subject is the seizure of the person, the discharge of the person, and the amenability of the person to the process of the court. Among them is the section (201) declaring the sheriff to be liable as bail, in certain contingencies. It is a declaration that he shall be bail of the character there spoken of, to wit, for the defendant's appearance, and not for the payment of the debt. The sections 206 to 211 are upon the subject of the delivery and redelivery of personal property, and the undertakings to be given with sureties to procure such delivery. The persons entering into those obligations for the delivery of the property and the payment of the amount adjudged, are sureties; they are not bail; that designation is nowhere applied to them. The word bail is not used in the chapter, except when it is declared that the qualifications of sureties, and their justification, shall be the same as are prescribed, in respect to bail, *Page 153 upon an order of arrest. (§ 213.) They are sureties, not bail; but they shall possess the same qualifications as are possessed by bail. Bail are technically described as such under the head of arrest of the person, and the intention of the legislature was to impose that liability and no other upon the sheriff, when he had arrested the defendant under the provisions of that chapter.
By the same section, which declares the sheriff to be liable as bail, it is enacted that he may discharge himself from such liability by giving and the justification of bail, as provided in sections 193 to 196. These sections prescribe the details of the manner of giving bail under the head of arrest of the person, and immediately following the section (187) making the obligation of bail to be that of the subjection of the person to the process of the court. This mode of discharge is in harmony with the explanation I have already given.
Look again at the class of cases in which it is declared that the sheriff shall himself be liable as bail. (§ 201.) "If after being arrested, the defendant escape or be rescued," the sheriff shall be liable as bail; because, having the party in his power, he is bound to keep him. He is bound to hold him against a rescue or an escape. The law furnishes him with ample means of protection, and if he neglects to use them, it justly makes him liable, as the bail would have been. "Or bail be not given or justified;" the same reason governs here. Suppose, however, the defendant is arrested, but does not escape, does not give bail at all and makes no deposit: is the Sheriff liable, and to what extent? If the plaintiff's argument is sound, he is liable, not for his appearance, but for the return of the property claimed. Section 187 says, that when arrested for this cause the defendant can be discharged only upon giving an undertaking for the delivery of the property and the payment of such sum as may be received. The defendant, upon being arrested, may say, "I am not able to procure that undertaking with sureties; I decline to attempt it; do with me as the law directs." The sheriff's duty, and the only possible mode he can adopt, is to hold the *Page 154 defendant in custody. This he does. The plaintiff, however, says, "This may all be so, but section 201 holds the sheriff liable as bail in such case, and that bail, according to section 211, is liable for the value of the property." This is entirely unsound. He is liable as bail technically, i.e., for the custody and appearance of the defendant, and for nothing more.
The defendant was actually surrendered to the sheriff and was in his custody legally. That was all that was important for him to do or to know. Whether the parties originally liable actually caused an exoneration to be entered, was of no interest to him.
In my opinion, the order for a new trial should be reversed, and the judgment at the Special Term should be affirmed with costs in the Supreme Court and in the Court of Appeals.
For affirmance, LOTT, Ch. C., LEONARD and GRAY, CC.
For reversal, HUNT and EARL, CC.