This is an action on an undertaking given by the defendants to the plaintiff, on his arrest of the defendant Gálliardet, under an order in an action by a third person (Mr. Cranston) against such defendant. The undertaking is in the usual form, promising that such defendant should at all times render himself amenable to the process of the court during the pendency of the action, and to such process as should be issued to enforce the judgment therein.
The complaint shows that .such third person (Cranston) obtained judgment against the defendant Galliardet; issued an execution against his property, which was returned unsatisfied ; and also, afterwards, an execution against his body,, which was returned by the officer to whom it was directed, not found. These facts, in an action against the present plaintiff, by the plaintiff in such action, would be enough to-charge the former with liability for an escape of the defend- ' ant therein.
The following are the only questions on the merits arising 1 in this case.
First. Was the undertaking sued upon ever an obligation to the plaintiff, and could he ever have maintained an action upon it; and if so, did it ever cease to be so, and by what means ?
Second. Is there any presumption of law in favor of the defendants, that the sheriff ever relieved himself of all responsibility for the production of the defendant’s body, in the original action, upon final process, by the delivery of the order of arrest, his return thereto, and a copy of the under*279taking in suit, to the attorney for the plaintiff in such action ?
Third. As incidental to the second question, does the liability of the defendant, vary, by the undertaking being to the plaintiff in this action instead of the plaintiff in the original action ?
The plaintiff, on the arrest of the former defendant, was liable as if he were bail, in case of an escape, rescue, or failure of the bail to justify, or of a deposit in their place (Code, § 201); and he may put in bail to surrender the defendant. (Code, §§ 201, 193-196 inclusive.) He is only
exonerated by the delivery of the order of arrest, return, and certified copy of the undertaking, to the attorney for the plaintiff in the original action, and the omission by such attorney to refuse such bail, for ten days, or by the justification of the same, or new bail. (§§ 192, 193.) During all this time until justification, the bail are liable to the sheriff. (§ 203.) By the justification he is relieved, and the bail become liable to the plaintiff in the action. There is no allegation, in the complaint, of the delivery of such documents, or non-refusal to accept the bail.
In the next place, the delivery of the order of arrest and other documents to 'the plaintiff’s attorney, authorized by the 192d section of the Code, is not a duty of the sheriff to any of the parties in the action; it is a privilege by which he relieves himself from responsibility, and until he does it, the bail are bound to him, but are not obliged to justify. If it were a duty, it would clearly not be one either to the defendant in the actioti, who can do nothing to enforce it, or to his bail, who are not benefited, and can only be harmed by it, by being required to justify. The defendants have a right to set up the same defences in an action by the present plaintiff on their undertaking, as they would were it brought in the name of the plaintiff in the former action'. Whatever damages the plaintiff is liable in for the latter, he can recover from the defendants, and they are the same as the plaintiff in the former action could recover had he assumed the benefit of the undertaking and sued upon it. There is, therefore, no ground for presuming, in favor of the defendants, that the sheriff ‘exonerated himself by' delivering the proper documents to the *280attorney for the plaintiff in the former suit. That, if the fact be so, should be set up as affirmative matter of defence. The defendants are neither better nor worse off than if the plaintiff in the former action were the plaintiff in this. In fact, the question to whom bail shall be liable, is entirely a matter of election between the sheriff and the plaintiff in the action. They are bound to produce the defendant’s body, when required by a final process, and if they do not, to indemnify the party actually injured thereby.
It is settled that the sheriff is not obliged to wait until he is sued in order to make the bail liable (Hinds a. Doubleday, 21 Wend., 223); and therefore the allegation in the complaint, of the institution of an action against him, is immaterial. The omission to allege expressly that the judgment stated to have been recovered was so in the action originally referred to in the complaint, is aided by the rest of the averments. Advantage can only be taken of it by a motion to make the complaint more definite and certain. The statute does not require the undertaking to be delivered to any one, but merely- to be executed by the bail (§ 187), which is termed giving bail. (§ 186.) It is not a mere contract: it is a stipulation in court, or recognizance, which enures to the benefit of the party entitled. A seal cannot do it any harm. Formerly a bail-bond was in form to the sheriff, but the law permitted a plaintiff,' when assignee of it, to sue upon it, even when other assignees could not sue in their own name. The present practice is perhaps simpler and equally efficacious.
Unless, therefore, it is to be assumed that the plaintiff relieved himself from responsibility by delivering the proper documents to the attorney for the plaintiff in the former action, which does not appear in the complaint, it shows a clear liability on the part of the defendants.
I do not see how, if the judgment had been said to have been recovered in the same action in which the order of arrest was issued, and the allegations respecting a seal to the undertaking and the commencement of a suit against the plaintiff had been omitted, a better complaint could have been drawn.
The defendants may be able to set up and prove facts in mitigation of damages, but prima faeie the plaintiff in the original action was entitled to recover the whole amount of the original *281bail, against the present plaintiff; and of course he is equally entitled to recover the same against the present defendants.
The order overruling the demurrer in this case must be affirmed, with costs.
Present, Robertson and Monell, JJ.