By the failure of the original sureties to justify, the defendant became liable as bail, and as such had the right to be exonerated on surrendering Warren to the jail before the expiration of the time to answer in the action against himself. And the special term had power to grant him such further time, after answer, as it deemed just, to make such surrender (Code of Civil Procedure, sec. 601). But to entitle the sheriff to such relief, after the time for answering had expired, it was incumbent on him to show a substantial and sufficient excuse for permitting the defendant in the execution *196'to be at large. That, we think, he failed to do. The time to answer expired on the 30th of April, 1819, and the application to be exonerated on surrendering the defendant, was not made until nearly ten months thereafter, If it is to' be assumed that the order of the special term exonerating him was a sufficient excuse so long as it was in force, it avails him nothing after it was reversed. From the last of October to the latter part of February he was without any excuse whatever, so far as the papers show.. True, he alleged, in vague and general terms, that he was unable to find Warren after diligent inquiry, but he did not state specific facts. He did not disclose the nature of his inquiries, of whom made, or what information he received in reply to them. On the other hand, the opposing affidavits state positively that with the exception of four weeks, Warren was openly in the city of Buffalo from October to February, and that during that period he saw and conversed with the sheriff, his deputy, or attorney on several occasions. The course of practice pursued by the defendant in the action against him indicates very clearly that he had no intention of rearresting Warren until the suit against the sheriff was about to be forced to trial.
Although the question involved in the defendant’s motion is one of discretion to a great extent, yet it is our duty to review the evidence. We have done so, and are satisfied that the defendant is without excuse.
The order should be reversed, with ten dollars costs and. disbursements.
Talcott, P. J., and Hardin, J., concurred. So ordered.