Chapter 1st of title 7 of the Code, •after authorizing an arrest, specifying the requisites of bail, and their right to surrender their principal, and the manner of doing ■so, provides in § 201, that if the defendant, after being arrested, escape or be rescued, or if hail be not given or justified, or a deposit be not made, Sec., the sheriff shall himself be liable as bail, and that he may discharge himself from such liability by giving and justifying bail at any time before process against the ¡person of the defendant.
*183In the present case the defendant was arrested, bail was not justified, and no deposit was made. The sheriff did, therefore, by the clear terms of the section, become liable as bail. He did not discharge himself by the giving and justification of bail before process against the person of the defendant was issued. His right to discharge himself by giving and justifying bail was gone, and his liability as bail thereby became fixed.
What was that liability, and could the sheriff be afterward exonerated 1
This question will be answered by inquiring, what is the liability of bail, and how may bail be exonerated ?
1st. Bail may be exonerated by a surrender of the" defendant before a failure to comply with their undertaking, i. e., before the return of process against the person of the defendant. (Sections 188-9.)
Neither the sheriff nor other bail can avail themselves of this provision, according to its letter, after their liability is fixed by the issuing and return of such process, and if their liability become so fixed, they may be proceeded against by action. (§ 190.)
2d. By the death of the defendant, his imprisonment in the state prison, or his legal discharge from the obligation to render himself amenable to the process.
Neither of these circumstances have arisen in this case.
3d. By the defendant’s surrender to the sheriff of the county where he was arrested in execution of the process against him, within twenty days after the commencement of the action against their bail, dr within such further time as may be granted by the court. (§ 191.)
This provision contemplates the recovery of final judgment against the original defendant; the issuing of process against the person; the return of that process by means of which the liability of. bail has become fixed; the commencement of suit against the bail upon that liability, and a surrender thereafter in their exoneration, within twenty days, or within such further time as the court may grant.
Under this latter provision, bail, though their liability as such has become fixed, may be exonerated by a surrender after *184action brought against them as above suggested; the sheriff in a case like the present has become liable as bail, but only as bail—his liability is the same in extent—is to be enforced in the same manner, and may be discharged by the same means. To hold otherwise would not be to hold him liable as bail, but as under a liability more stringent than that of bail.
I have therefore no doubt that the sheriff may, after action brought against him, be exonerated by the surrender mentioned in the 191st section. It was, in my judgment, the intention of the legislature to place the sheriff, in case of escape or failure of bail to justify, &c., in the same situation in all respects as bail, if he do not before process issues against the person of the defendant, put in other bail who shall justify; and when in that situation, he has the same right to an exoneretur after action brought against him, which, by the last-named section, is given to them.
The sheriff, in this case, caused other bail to be put in, and, upon their surrender of the defendant, obtained an order for the exoneration of the bail of the defendant. His right to put in other bail as between him and the plaintiff was gone, when process issued against the person of the defendant, (§ 201.) Not having previously put in and justified bail, he had then become bail himself; the only exoneration which was required, and was proper or regular, was an exoneration from his liability as bail; he could not as between himself and the plaintiff substitute another. The plaintiff was not bound to regard the other bail so put in. But this form of-putting in other bail, and the surrender by them, has obviously been resorted to only as a means of bringing the defendant within the power of the sheriff, so that he might avail himself of the privilege given by the 191st section. Whether it was necessary for the sheriff to adopt that means, it is not material to inquire. Those means were successful, and the plaintiff has no concern with the inquiry how the sheriff was enabled to effect the surrender, provided it was done in such a manner as to léave the defendant in custody, and make him amenable to process under the judgment againt him—this, I think, was done.
*185But the attorney for the plaintiff, in the original action, was notified of an application to exonerate the bail for the defendant, and was served at the same time with an undertaking, signed by Matthew H. Chase. He had no reason to suppose that this application was made by the sheriff, or was for his exoneration. It was a matter of indifference to him whether Matthew H. Chase was exonerated or not—as between the plaintiff and the sheriff—the sheriff was bail, and notice ought to have been given that an application would be made to exonerate him. The papers served were not authenticated in any manner so as to apprise the plaintiff that the sheriff was seeking to obtain relief, and if it was proper to serve them upon the attorney for plaintiff in the original action, instead of his attorney in the present suit, I think they were not sufficient notice of any motion in the sheriff’s behalf.
I would not encourage a total disregard of any notice of an application to the court, founded on mere irregularity. But here the plaintiff’s attorney did not totally disregard it. He notified the sheriff that he had received such a notice—that he did not know from whom it came—that he deemed it irregular, and put the sheriff fully on his guard, and the sheriff ought, I think, to have thereupon distinctly apprised him of the purpose and design of the application, and on whose behalf it was made. Upon this ground I think the motion must be denied; but I am disposed to stay the plaintiff’s proceedings and give time to the sheriff to procure an exoneretur, to which he is, I think, clearly entitled.
As the questions raised on this motion are novel, and the practice under this part of the Code, so far as I can discover, wholly unsettled, and by no means free from difficulty, I allow no costs.