Affidavit to move for exoneration of bail.

in this action, from all further liability as such bail, and for such other relief as may be just.

Yours, etc.,

A. MILLS, Defendant's Attorney.

Affidavit to move for Exoneration of Bail.

(Title of cause.)

C. D., one of the bail (or C. D. and E. F., the bail) for the defendant Y. Z., in this action, being sworn, says (or being sworn do severally say), that judgment was obtained and docketed in this action against the said Y. Z., on or about the

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day of

18 and that an execution in due form was duly issued thereon on the day of II. That (after the issuing, and before the return of the said execution, and (on or about the

said defendant died at

(Jurat.)

(Title of cause.)

day of

Order Exonerating Bail.

18, the (Signature.)

On reading and filing the annexed certificate of the sheriff of (or affidavit of C. D. and E. F.) and a copy of the undertaking of bail given by (the said) C. D. and E. F. in this action, and on motion of A. Mills, counsel for the defendant, and after hearing J. S. Avery, counsel for the plaintiff (or on proof of due service of the notice of this motion on the plaintiff).

ORDERED: That C. D. and E. F., the said bail, be and the same are hereby exonerated from all liability on account of the said undertaking.

(Date.)

(Signature of the Judge.)

e. Exoneration by death, etc. The bail may be exonerated either by the death of the defendant, or his imprisonment in a State prison, or by his legal discharge from the obligation to render himself amenable to the process, or by his surrender to the sheriff of the county where he was arrested. Code, § 191.

It is not absolutely necessary that the bail should in all cases be able to produce positive proof of the death of their principal, when an order of exoneration is sought on that ground. It will be sufficient if the bail establish strong presumptive proof of the death of their principal. What facts will create a presumption of law in favor of the death of a party can only be determined by the peculiar circumstances of each case. Whenever such

Exoneration by death, etc.

presumption is established, the bail may obtain their discharge as well as on positive proof of the death of their principal. Merritt v. Thompson, 1 Hilt. 550.

The practice of discharging the bail in cases where the principal was imprisoned for a long series of years in a State prison, existed before the Code. But this practice was never extended to cases where the term of imprisonment was comparatively short. Cathcart v. Cannon, 1 Johns. Cas. 28; Phenix Fire Insurance Company v. Mowatt, 6 Cow. 599; Loflin v. Fowler, 18 Johns. 335.

The third event mentioned by the Code, as operating to discharge the bail from liability on their undertaking, is the legal discharge of the principal from the obligation to render himself amenable to the process that may be issued against him. This may occur when the principal has obtained a legal discharge from his debts under the insolvent debtors' act, or where he has recovered final judgment in the action in which he was arrested. In the latter case the power of the court over the litigation and the parties must be exhausted by such judgment before the liability of the bail ceases. A judgment by default may be a final judgment, and where the bail desire to relieve themselves on such default from further liability on their undertaking, they should move promptly for an order of exoneration; for, if the judgment is set aside before such order is obtained, and the plaintiff be allowed to proceed in the action, their liability will revive. Von Gerhard v. Lighte, 13 Abb. 101; Appleby v. Robinson, 44 Barb. 316.

And an agreement by a creditor, if not under seal, to accept in discharge of his claim less than the full amount due, is void for want of consideration. An agreement so made between the plaintiff and the defendant under arrest will not exonerate the bail. Von Gerhard v. Lighte, 13 Abb. 101. But where the plaintiff does an act to the injury of the bail, or varies the terms of the obligation, or enlarges the time of performance without the consent of the bail, they will be discharged. Rathbone v. Warren, 10 Johns. 587; Huffman v. Hulbert, 13 Wend.

377.

An exoneretur will be granted on motion where the principal has been discharged under the insolvent debtor's act. Seaman v. Drake, 1 Cai. 9; Franklin v. Thurber, 1 Cow. 427; White v. Blake, 22 Wend. 612. But if the discharge was obtained in time to

Exoneration, at what time.

be pleaded by the principal, a motion for an exoneretur will be denied, unless such plea was interposed. The remedy for the bail in such case is by a surrender of their principal. Campbell v. Palmer, 6 Cow. 596; Post v. Riley, 18 Johns. 54; Mechanics' Bank v. Hazard, 9 id. 392.

The fourth event by which the bail may be exonerated is the execution of the obligation contained in the undertaking by the surrender of their principal to the sheriff of the county in which he was arrested, within twenty days after the commencement of an action against them for the recovery of the sum specified in the undertaking, or within such further time as may be granted by the court.

Previous to the motion for an order of exoneration, the bail should provide themselves with the requisite proof of the facts upon which they rely to obtain the order. If the motion is based on the surrender of the principal, the sheriff's certificate of this fact is the proper proof; if the death of their principal is the foundation of the motion, proper affidavits establishing that fact, or furnishing presumptive evidence to sustain it, should be carefully prepared to be used on the motion. The proof of the other events on which an exoneretur may be ordered, may be furnished by a certified copy of the records of the court, where the proceedings were had on which the bail rely for their exoneration. This proof, whether it be in the form of a sheriff's certificate, an affidavit, or a copy of a record, must be served on the plaintiff, together with the notice of motion, at least eight days before the argument. Code, § 188. An affidavit, or other proof of such service, must be furnished on the argument, together with the papers served and copy of the undertaking.

f. Exoneration, at what time. Where the bail surrender their principal before failing to comply with their obligation, an order of exoneration may be obtained at the expiration of the eight days required for the due service of the notice of motion and certificate of surrender. Code, § 188. But, after an action has been commenced against the bail, no order can be obtained under the Code, unless some one of the events specified in section 191 has occurred within the twenty days next succeeding the commencement of the action, or within such further time as has been allowed by the court. Hayes v. Carrington, 12 Abb. 179; S. C., 21 How. 143; Baker v. Curtis, 10 Abb. 279.

The same rule holds true if the provisions of the Revised

Extension of time - Notice of motion to extend time to surrender.

Statutes, allowing exoneration on the death of the principal, if occurring within eight days after the return of process, have not been repealed by the Code. But, as there is no longer a return of process in the sense in which it was then understood, the equivalent for such return under the Code must be taken as the limit within which the bail must surrender their principal, as the defendant is entitled to that time to put himself in court to surrender or defend. This equivalent is to be found in the time allowed to answer the complaint after the service of a summons, or where a complaint is not served in the twenty days allowed for an appearance. Hayes v. Carrington, 12 Abb. 179; S. C., 21 How. 143; 2 R. S. 383 (397), § 34.

g. Extension of time. The court may, in its discretion, extend the time allowed by the Code for the surrender of their principal by the bail, after the twenty days allowed for such surrender has expired. Code, § 191; Bank of Geneva v. Reynolds, 12 Abb. 81; S. C., 20 How. 18; Gilbert v. Bulkley, 1 Duer, 668; Baker v. Curtis, 10 Abb. 279; Hayes v. Carrington, 12 id. 179; S. C., 21 How. 143.

Notice of Motion to Extend time to Surrender. (Title of cause.)

Please take notice, that on the affidavit of which a copy is herewith served, and on the undertaking of bail in this action, I shall move before Hon. one of the justices of the court,

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at his office, in the city of at o'clock in the forenoon, the defendant's bail in this action, have surrender such defendant to the sheriff in their exoneration, and for such other relief as may be just.

on the day of for an order that C. D. and E. F., days further time to

(Date.)

To J. S. AVERY,

Plaintiff's Attorney.

A. MILLS,

Defendant's Attorney.

Affidavit in Support of such Motion.

(Title of cause.)

(Venue.)

C. D., being duly sworn, says:

I. That he is one of the bail for the above-named defendant, Y. Z., in this action; that said Y. Z. was arrested about the day of 18 , by virtue of an order of arrest granted in said action by the Hon. one of the justices of this court, on the ground that (state grounds of arrest) and that on the day of this deponent and E. F. became bail for this defendant by giving an undertaking, of which a copy is hereto annexed.

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Affidavit in support of motion

Bail, how proceeded against.

II. That (state excuse for not surrendering the defendant in season).

III. That (show that a surrender is now possible).

IV. That no action has been commenced against said bail as deponent is informed and believes. C. D.

(Jurat.)

If an action has been commenced against the bail, the motion to enlarge the time in which they may surrender their principal should be made and entitled in such new action. The affidavit should contain, substantially, the same allegations as the one above given, except that it should allege the fact of the commencement of an action against the bail upon their liability upon the undertaking, and also allege their readiness to pay the costs which have already accrued in such action.

The power of extending the time in which the bail may surrender their principal is not confined to the court in which the original action was brought. In a suit brought in the supreme court on an undertaking of bail, that court may grant relief to the bail, although the original action was in another court; and may allow them a temporary stay of proceedings to enable them to surrender their principal. Barker v. Russell, 11 Barb. 303; S. C., 1 Code R. N. S. 57.

The practice was well settled before the Code, and has not since been changed, that where bail, by reason of circumstances over which they had no control, were prevented from making the surrender within the regular time, the court would enlarge the time of surrender, although no application had been made, or stay of proceedings obtained within the regular time for making the surrender. Bank of Geneva v. Reynolds, 12 Abb. 81; S. C., 20 How. 18, and cases cited.

But an application for an extension of time should state that the bail are in no way indemnified; and where this cannot be shown the application should be denied. Ib.

Section 4. Bail, how proceeded against.

a. In general. Under the former practice the plaintiff had his election, on the failure of the bail, to comply with their undertaking, to proceed by scire facias on the judgment, or by an action of debt on the recognizance. See 2 R. S. 383 (397), § 35; id. 580 (601), § 23. But the Code expressly provides, that in case of failure to comply with the undertaking, the bail may be proceeded against by action only. Code, § 190. This provision