at any time within twenty days after the arrest; and an application to increase the security given by the plaintiff, may be made at any time before final judgment. § 568. [am'd 1877.] An application, specified in the last section, may be founded only upon the papers upon which the order was granted; in which case, it must be made to the court, or, if the order was granted by a judge out of court, to the same judge, in court or out of court, and with or without notice, as he deems proper, and the application must be heard upon those papers only. Or it may be founded upon proof, by affidavit, on the part of the defendant; in which case, it must be made to the court, or, if the order was granted by a judge, out of court, to any judge of the court, upon notice; and it may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground of arrest recited in the order and no other, unless the defendant relies upon a discharge in bankruptcy, or upon a discharge or exoneration, granted in insolvent proceedings; in which case, the plaintiff may show any matter in avoidance thereof, which he might show upon the trial. S$ 569-571. [Repealed 1877.] § 572. [am'd 1877, 1882, 1886.] Except in a case where an order of arrest can be granted only by the court if the plaintiff unreasonably delays the trial of the action or neglects to enter judgment therein within ten days after it is in his power to do so, or neglects to issue execution against the person of the defendant within ten days after the return of the execution against the property, and in any event neglects to issue the same within three months after the entry of the judgment, or whenever it shall appear to the satisfaction of the court that the plaintiff in an action, or a judgment creditor in a judgment, delays the enforcement of his remedies therein by collusion, or for the purpose of allowing the debtor to remain in prison under the mandate in any other action, before the issuing of the mandate in favor of such creditor, so as to produce a continued and extended imprisonment by virtue of the separate mandates in the different actions, the defendant must upon his application, made upon notice to the plaintiff, be discharged from custody if he has already been taken under the mandate against him in such action; or if he has not yet been imprisoned therein be relieved from imprisonment by virtue of such mandate, by the court in which the action was commenced, unless reasonable cause is shown why the application should not be granted. A defendant discharged as prescribed in this section shall not be arrested upon an execution issued upon the judgment in the action. ARTICLE THIRD. DISCHARGING THE DEFENDANT UPON BAIL OR DEPOSIT; JUSTIFICATION OF THE BAIL AND DISPOSITION OF THE DEPOSIT. 573. The defendant, at any time before he is in contempt, where the order can be granted only by the court, or, in any other case, at any time before execution againt his person, must be dicharged from arrest, either upon giving bail, or upon depositing the sum specified in the order of arrest. The defendant may give bail, or make the deposit, immediately upon his arrest, at any hour of the day or night; and he must have reasonable opportunity to see* for and to procure bail, before being committed to jail. *Should be "seek." 574. Where the defendant is actually confined in the jail, by virtue of an order of arrest, and final or interlocutory judgment has been rendered against him in the action, but an execution against his person has not been issued, he may elect either to give a bond for the liberties of the jail, or to give bail or make a deposit, as prescribed in this article. 575. The defendant may give bail, by delivering to the sheriff a written undertaking, in the sum specified in the order of arrest, executed by two or more sufficient bail, stating their places of residence and occupations, to the following effect: 1. If the order of arrest could be granted only by the court, that the defendant will obey the direction of court, or of an appellate court, contained in an order or a judgment, requiring him to perform the act specified in the order; or, in default of his so doing, that he will, at all times, render himself amenable to proceedings to punish him for the omission. 2. If the action is to recover a chattel, that the defendant will deliver it to the plaintiff, if delivery thereof is adjudged in the action, and will pay any sum recovered against him in the action. 3. In any other case, that the defendant will, at all times, render himself amenable to any mandate which may be issued to enforce a final judgment against him in the action. § 576. [am'd 1877 & 1879.] It is not necessary that the undertaking should be approved or accompanied with an affidavit of justification of the bail. But the officer, taking the acknowledgement of the undertaking, must, if the sheriff so requires, examine under oath, to a reasonable extent, the persons offering to become bail, concerning their property and their circumstances. The examination must be reduced to writing, subscribed by the bail, and annexed to the undertaking. § 577. [am'd 1879.] Within three days after bail is given, the sheriff Laust deliver to the plaintiff's attorney copies, certified by him, of the order of arrest, return and undertaking. The plaintiff's attorney, within ten days thereafter, must serve upon the sheriff a notice that he does not accept the bail; otherwise he is deemed to have accepted them, and the sheriff is exonerated from liability. 578. Within ten days after the receipt of the notice, the sheriff or the defendant may serve upon the plaintiff's attorney, notice of the justification of the same or other bail, specifying the place of residence and occupation of each of the latter, before a judge of the court, or a county judge, at a specified time and place; the time to be not less than five or more than ten days thereafter, and the place to be within the county where one of the bail resides, or where the defendant was arrested. If other bail are given, a new undertaking must be executed, as prescribed in section five hundred and seventy-five of this act. 579. The qualifications of bail are as follows: 1. Each of them must be a resident of, and a householder or freeholder within the State. 2. Each of them must be worth the sum specified in the order of arrest, exclusive of property exempt from execution; but the judge, on justification, may allow more than two bail to justify, severally, in sums less than that specified in the order, if the whole justification is equivalent to that of two sufficient bail. § 580. For the purpose of justification, each of the bail must attend before the judge, at the time and place mentioned in the notice, and be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge, in his discretion, thinks proper. The judge may, in his discretion, adjourn the examination from day to day, until it is completed; but such an adjournment must always be to the next judicial day, unless by consent of parties. If required by the plaintiff's attorney, the examination must be reduced to writing, and subscribed by the bail. § 581. If the judge finds the bail sufficient, he must annex the examina tion to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk. The sheriff is thereupon exonerated from liability. § 582. The defendant may, instead of giving bail, deposit with the sheriff the sum specified in the order. The sheriff must thereupon give the defendant a certificate of the deposit, and discharge him from custody. § 583. The sheriff must, within four days after the deposit, pay it into court. He must take, from the officer receiving it, two certificates of the payment, one of which he must deliver to the plaintiff, and the other to the defendant. For a default in making the payment, the official bond of the sheriff may be prosecuted, as in any other case of delinquency. $584. If money is deposited, as prescribed in the last two sections, bail may be given, and may justify upon notice, at any time before the expiration of the right to be discharged on bail. Thereupon the judge, before whom the justification is had, must direct, in the order of allowance, that the money deposited be refunded to the defendant, or his representa tive, and it must be refunded accordingly. § 585. If money deposited is not refunded, as prescribed in the last section, it is, in a case, where the order of arrest could be granted only by the court, subject to the direction of the court, as justice requires, before and after the judgment. In any other case, if it remains on deposit, when final judgment is rendered for the plaintiff, it must be applied, under the direction of the court, in satisfaction of the judgment; and the surplus, if any, must be refunded to the defendant, or his representative. If the final judgment is for the defendant, or the action abates, or is discontinued, the sum deposited, and remaining unapplied, must be refunded to the defendant or his representative. 586. At any time before the deposit is paid into court, the defendant may deliver to the sheriff a written direction, to pay it to a third person. therein specified, in the event that the defendant becomes entitled to a return thereof; but without expressing any other contingency. The direction must be acknowledge or proved, and certified, in like manner as a deed to be recorded; and the sheriff must deliver it to the officer who receives the deposit, who must note the substance thereof, with the entries of the deposit, in his books, and upon the two certificates of payment into court. The money thus deposited is deemed the property of the third person, subject to the plaintiff's interest therein; and subject to the rights of a credi tor of the defendant, where the direction was given for the purpose hindering, delaying, or defrauding creditors. The money, or the residue thereof, must be paid to the third person, where, by the provisions of the last two sections, it is required to be refunded to the defendant, or his representative. § 587. [am'd 1877.] 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, or if the sheriff fails to pay the deposit into court as required by section five hundred and eighty-three of this act, 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, as follows: 1. If the case is one where the order could be granted only by the court, at any time before the court directs the performance of the act specified in the order. 2. In any other case, at any time before an execution is issued against the person of the defendant, upon a judgment in the action. § 588. If judgment is recovered against the sheriff, upon his liability as bail, and an execution thereon is returned wholly or partly unsatisfied, the official bond of the sheriff may be prosecuted, as in any other case of delinquency. § 589. [am'd 1877.] The bail taken upon the arrest, unless they justify, or other bail are given and justify, are liable to the sheriff for all damages, which he sustains by reason of the omission. § 590. [am'd 1879.] Within ten days after the defendant is arrested, it he does not give bail, or if he gives bail, within ten days after the justification of the bail, the sheriff must file with the clerk the order of arrest, or, where it was granted by the court, the certified copy thereof delivered to him, with his return thereupon indorsed, the papers upon which the order of arrest was granted, and the undertaking given on the part of the plaintiff. Where an order of arrest, directing the arrest of two or more defendants, has been executed as to one or more, but not as to al' of them, the sheriff may file a copy of the order of arrest, instead of the original. ARTICLE FOURTH. CHARGING AND DISCHARGING BAIL. 591. When defendant may be surrendered. 592. How surrender to be made; ex- 593. Bail may arrest defendant. 595. Rights, etc.; of sheriff who is § 596. Bail; how proeeeded against. 599. Defences in action against bail. 591. Except in an action to recover a chattel, the bail may surrende the defendant in their own exoneration, or the defendant may surrender him self in exoneration of the bail, before the expiration of the time to answer in an action against them. The surrender must be made to the sherif of the county, where the defendant was arrested. 592. Where the bail surrender the defendant, the surrender must b made in the following manner: 1. They must take the defendant to the sheriff, and require him, writing, to take the defendant into his custody. 2. A certified copy of the undertaking of the bail must be delivered j the sheriff, who must detain the defendant in his custody thereupor, as upon the original mandate, and must, by a certificate in writing, acknowledge the surrender. Upon the application of the bail, made upon notice to the plaintiff's attorney, and upon production of the sheriff's certificate and a copy of the undertaking, a judge of the court, or the county judge of the county where the action is triable, may make an order, directing that the bail by exonerated. On filing the order and the papers used on the application therefor, the bail are exonerated accordingly. § 593. [am'd 1877.] For the purpose of surrendering the defendant, the bail, at any place or at any time bofore they are finally charged, may themselves arrest him, or, by a written authority, endorsed on a certified copy of the undertaking, may empower another person to do so. And one or more of the bail may thus arrest and surrender the defendant, although the others do not join with him or them, for that purpose. 594. Where the defendant surrenders himself in exoneration of his bail, he must present himself to the sheriff, and require the sheriff, in writing, to take him into custody, in exoneration of his bail. The sheriff must detain him accordingly, as prescribed in subdivision second of section five hundred and ninety-two of this act; and, if requested by the bail, at any time after the surrender, the sheriff mnst, by a certificate in writing, acknowledge the surrender. An order for the exoneration of the bail may be procured, as prescribed in section five hundred and ninety-two of this act. § 695. Where the sheriff is liable as bail, he has all the rights and privi leges, 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 defence arises to an action against the bail, in consequence of an act or omission of the sheriff. § 596. In case of failure to comply with the undertaking, the bail may be proceeded against by action, and not otherwise. § 597. An action may be brought, as prescribed in the last section, in s case where the order of arrest could be granted only by the court, at any time after the bail have failed to comply with their undertaking. Where the undertaking was given in an action to recover a chattel, an action may be brought thereupon, at any time after the return, wholly or partly unsat isfied, of an execution for the delivery of the possession of the chattel, with respect to which the order of arrest was granted. In any other case, an action cannot be brought, as prescribed in the last section, until the follow. ing requisites have been complied with: 1. An execution, against the property of the defendant, must have been issued to the sheriff of the county in which he was arrested, and returned by that sheriff, wholly or partly unsatisfied. 2. An execution, against the person of the defendant, must have been issued to the same sheriff, and by him returned, not less than fifteen days after its receipt, to the effect that the defendant could not be found within his county. § 598. [am'd 1877.] The sheriff must diligently endeavor to enforce an execution issued and delivered to him, as prescribed in the last section, notwithstanding any direction he may receive from the plaintiff, or his attorney. § 699. [am'd 1877.] In an action against bail, it is a defence, that an |