given of defend § 187. The defendant may give bail, by causing a writ- Bail, how ten undertaking to be executed by two or more sufficient bail, stating their places of residence and occupations, to the effect that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, or if he be arrested for the cause mentioned in the third subdivision of section 179, and undertaking to the same effect as that provided by section 211. § 188. At any time before a failure to comply with the surrender undertaking, the bail may surrender the defendant in their ant. exoneration, or he may surrender himself to the sheriff of the county where he was arrested, in the following manner: 1. A certified copy of the undertaking of the bail shall be delivered to the sheriff, who shall detain the defendant in his custody thereon, as upon an order of arrest, and shall, by a certificate in writing, acknowledge the surrender; 2. Upon the production of a copy of the undertaking and sheriff's certificate, a judge of the court, or county judge, may upon a notice to the plaintill, of eight days, with a copy of the certificate, order that the bail be exonerated; and on filing the order and the papers used on said application, they shall be exonerated accordingly. But this section shall not apply to an arrest for cause mentioned in subdivision 3, of section 179 so as to discharge the bail from an undertaking given to the effect provided by section 211. $ 189. For the purpose of surrendering the defendant, The same the bail, at any time or place, before they are finally charged, may themselves arrest him, or by a written authority, endorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so. § 190. In case of failure to comply with the undertak- Bail, how. ing the bail may be proceeded against by action only. E proceeded against. Bail, how exonerated undertaking 10 plaintiff, and its reception or rejection by him, Notice of justification $ 191. 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, in execution thereof, within twenty days after the commencement of the action against the bail, or within such further time as may be granted by the court. Delivery of $ 192. Within the time limited for that purpose the sheriff shall deliver the order of arrest to the plaintiff or attorney by whom it is subscribed, with his return endorsed, and a certified copy of the undertaking of the bail. The plaintiff, within ten days thereafter, may serve upon the sheriff, a notice that he does not accept the bail, or he shall be deemed to have accepted it, and the sheriff shall be exonerated from liability. § 193. On the receipt of such notice, the sheriff or defendant may, within ten days thereafter, give to the plaintif or attorney by whom the order of arrest is subscribed, notice of the justification of the same, or other bail, (specifying the places of residence and occupation of the latter,) before a judge of the court, or county judge, at a specified time and place ; the time to be not less than five nor more than ten days thereafter. In case other bail be given, there shall be a new New en undertaking, in the form prescribed in section one hundred and eighty-seven. § 194. The qualifications of bail must be as follows: Qualifica 1. Each of them must be a resident and householder or freeholder, within the state. 2. They must each be worth the amount specified in the order of arrest, exclusive of property exempt from execu. tion, but the judge, or a justice of the peace on justification, may allow more than two bail to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail. if other bail. tions of bail a tion of bail. of bai. money sherifl a $ 195. For the purpose of justification, each of the bail Justificashall attend before the judge, or a justice of the peace, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or justice of the peace, in his discretion, may think proper. The examination shall be reduced to writing and subscribed by the bail, if required by the plaintiff. $ 196. If the judge or justice of the peace find the bail Allowan sufficient, he shall annex the examination to the undertaking,endorse his allowance thereon, and cause them to be filed with the clerk; and the sheriff shall thereupon be exonerated from liability. § 197. The defendant may, at the time of his arrest, in- Deposa of . stead of giving bail, deposit with the sheriff the amount with the mentioned in the order. The sheriff shall thereupon give the defendant a certificate of the deposit, and the defendant shall be discharged out of custody. $ 198. The sheriff shall, within four days after the de- Payment of posit, pay the same into court; and shall take from the court by the officer receiving the same, two certificates of such payment, the one of which he shall deliver to the plaintiff, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the sheriff to collect the sum deposited, as in other cases of delinquency. § 199. If money be deposited, as provided in the last Substitu for deposit two sections, bail may be given and justified upon notice, as prescribed in section 193, any time before judgment; and thereupon the judge before whom the justification is had, shall direct, in the order of allowance, that the money deposited be refunded by the sheriff to the defendant, and it shall be refunded accordingly. $ 200. Where money shall have been so deposited, if it Money der posited how remain on deposit at the time of an order or judgment for disposed of. the payment of money to the laintiff, the clerk shall, money into sheriff ting bail applied when liable his dis charge from liabil ity. ings on under the direction of the court, apply the same in satisfaction thereof, and after satisfying the judgment, shall refund the surplus, if any, to the defendant. If the judgment be in favor of the defendant, the clerk shall refund to him the whole sum deposited and remaining unapplied. Sheriff, $201. If, after being arrested, the defendant escape or : bail, and be rescued, or bail be not given or justified, or a deposit be not made instead thereof, the sheriff shall himself be liable as bail. But he may discharge himself from such liability, by the giving and justification of bail as provided in sections 193, 194, 195 and 196, at any time before process against the person of the defendant, to enforce an order or judgment in the action. Proceed. § 202. If a judgment be recovered against the sheriff, judgment upon his liability as bail, and an execution thereon be re turned unsatisfied, in whole or in part, the same proceedings may be had on the official bond of the sheriff, to collect the deficiency, as in other cases of delinquency. 8 203. The bail taken upon the arrest, shall, unless they justify, or other bail be given or justified, be liable to the sheriff, by action, for damages which he may sustain by reason of such omission. Motion to $ 204. A defendant arrested, may, at any time before the justification of bail, apply, on motion, to vacate the order duce bill. of arrest, or to reduce the amount of bail. $ 205. If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the order of arrest was made. against sheriff. Ball liablo to sherifi. vacato order of arrest or ro Affidavits on motion. CHAPTER II. Claim and delivery of Personal Property. SECTION 206. Delivery of personal property, when it may be claimed. 208. Requisition to sheriff, to take and deliver the property. 210. Exception to sureties and proceedings thereon or on failure 211. Defendant when entitled to re-delivery. 212. Justification of defendant's sureties. 213. Qualification and justification of sureties. 214. Property, how taken when concealed in building or enclo sure. 215. Property, how kept. 216. Claim of property by third person. 217. Notice and affidavit, when and where to be filed. when it claimed.. §206. The plaintiff, in an action to recover the posses- Delivery of personal sion of personal property, may, at the time of issuing the property, summons, or at any time before answer, claim the immedi- may be ate delivery of such property as provided in this chapter. § 207. Where a delivery is claimed, an affidavit must be Affidavit, made by the plaintiff, or by some one in his behalf, show-quisites. ing, 1. That the plaintiff is the owner of the property claimed, (particularly describing it,) or is lawfully entitled to the possession thereof, by virtue of a special property therein, the facts in respect to which shall be set forth; 2. That the property is wrongfully detained by the defendant; 3. The alleged cause of the detention thereof, according to his best knowledge, information and belief. 4. That the same has not been taken for a tax, assessment or fine, pursuant to a statute; or seized under an execution or attachment against the property of the plaintiff; or if so seized, that it is, by statute, exempt from such seizure; and, 5. The actual value of the property. and its re 208. The plaintiff may, thereupon, by an endorsement Requisition in writing upon the affidavit, require the sheriff of the to take and to sheriff, deliver pro perty. |