—The defendant in this case was arrested under subdivision 3 of section 1T9 of the Code. His sureties failed to justify, and the sheriff, therefore, became his bail. This is by section 201 of the Code, and as held by Justice Ingraham in Santos a. Marceques (9 How. Pr. R., 188).
The sheriff has, therefore, all the rights of bail, and the same rights as though he was the bail and had justified.
One of the rights thus secured to the bail, by section 188 of the Code, is to surrender their principal. That the sheriff has done here by the rearrest of the defendant, his principal; and that he can do this, I think, is well settled by the case cited above.
But it seems to me that such surrender can have no greater effect than if made by the bail; and what such effect is, will be seen by the last clause of subdivision 2 of section 188 of the Code.
*257But, without determining the effect of this rearrest of the defendant by the sheriff, I have no doubt that it was lawfully made, and the motion to discharge him must be denied, with costs—$10.