[After stating the facts as above.]—In the above statement of facts I have merely alluded to the conceded facts of the case.
The questions raised upon the papers as to the manner in ' which the bail was taken have not been mentioned, the same being immaterial in view of the conclusion which has been arrived at upon the law as applicable to the conceded facts.
It is urged upon the part of the appellant that as the sheriff is liable as bail he has all the rights and privileges of bail, and that it was customary to exonerate bail under like circumstances. The provisions of the Code, however, do not seem to contemplate that the sheriff shall be exonerated under circumstances like those above stated.
Section 587 of the Code provides that “if after the defendant is arrested he escapes or is rescued, or the bail, if any, given by him, do not justify, when they are not accepted .....the sheriff is liable as bail; but the sheriff may, except in an action to recover a chattel, discharge himself from liability, by the giving and justification of bail,” &c.
*305The bail attempted to be given by Auchise not having justified, under the provisions of the foregoing section, the sheriff became liable as bail.
Section 595 provides as follows :—“ Where the sheriff is liable as bail he has all the rights and privileges and is subject to all the duties and liabilities of bail; and bail given by him, in order to discharge himself from liability, must be regarded as the bail of the defendant in the action; ” but this section does not apply to an action to recover a chattel, or to a case where a defense arises to an action against the bail in consequence of an act or omission of the sheriff.
By section 600 it is provided, “ If the defendant in the original action after his discharge upon bail is imprisoned, either within or without the state, upon a criminal charge, or a conviction of a criminal offense, the court, in which an action against the bail is pending, may, before the expiration of the time to answer, and upon notice to the adverse party, make such an order for the relief of the bail as justice requires.”
It seems to us that the words, “ after his discharge upon bail,” mean after his discharge in such a manner upon bail as relieves the sheriff from liability.
The provisions of section 587 are that the sheriff is discharged from liability only upon justification of the bail, if it is not accepted.
In the case at bar no bail ever justified, and the sheriff therefore became liable as bail. It is true that by section 595 it is provided that where the sheriff is' liable as bail he has all the rights and privileges, and is subject to all the duties and liabilities of bail; but section 600 especially limits the right to apply for and obtain the relief provided for by that section to the case where a defendant after his discharge upon bail is imprisoned, &c. Such discharge is a discharge without the consent of the sheriff: .he cannot be surrendered: and relieves the sheriff from all liability.
In the case at bar, as has already been said, the defendant in the original action was never discharged upon bail, and *306was never entitled to go at large so as to provide himself with a home in a prison in a foreign state.
We are of the opinion, therefore, that the order appealed from should be affirmed, with costs and disbursements, to abide the final event of the action.
Beach, J., concurred.
Order affirmed, with costs to abide event.