592. How surrender to be made; exoneration of bail thereupon. - Where the bail surrender the defendant, the surrender must be made in the following manner: 1. They must take the defendant to the sheriff, and require him, in writing, to take the defendant into his custody. 2. A certified copy of the undertaking of the bail must be delivered to the sheriff, who must detain the defendant in his custody thereupon, 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 be exonerated. filing the order and the papers used on the application therefor, the bail are exonerated accordingly. On Co. Proc., part of 188, am'd. See Steelman v. Mattix, 20 Am. Rep. 389. ant. -- 593. [Amended, 1877.] Bail may arrest defend- For the purpose of surrendering the defendant, the bail, at any place or at any time before they are finally charged, may themselves arrest him, or, by a written authority, indorsed 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. la., 189, am'd. Re Taylor, 7 How. 212. § 594. Voluntary surrender; exoneration of bail thereupon. 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 592 of this act; and, if requested by the bail, at any time after the surrender, the sheriff must, by a certificate in writing, acknowledge the surrender. An order for exoneration of the bail may be procured, as prescribed in section 592 of this act. New. 595. Rights, etc., of sheriff who is liable for bail 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 defence arises to an action against the bail, in consequence of an act or omission of the sheriff, New. Brady v. Brundage, 59 N. Y. 310, and cases cited; Buckman v. Carnley, 9 How. Pr. 180; Sartos v. Merceques, id. 188; Seaver v. Genner, 10 Abb. Pr. 256; Metcalf r. Stryker, id. 12; McGregory v. Willett. 17 How. Pr. 439. See, also, 587, ante. 596. Bail; how proceeded against. - In case of failure to comply with the undertaking, the bail may be proceeded against by action, and not otherwise. Co. Proc., 190. § 597. Certain executions necessary before action against bail. An action may be brought, as prescribed in the last section, in a 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 unsatisfied, 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 following 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. 2 R. S. 382, 31 (2 Edm. 397), am'd. $598.* Duty of sheriff on such executions. — The sheriff must diligently endeavor to enforce an execu tion issued and delivered to him, as prescribed in the last section, notwithstanding any direction he may receive from the plaintiff, or his attorney. 2 K. S. 382, 32. 599.* Defences in action against bail. In an action against bail, it is a defence, that an execution, against the property, or against the person, of the defendant in the original action, was not issued, as prescribed in section five hundred and ninety-seven of this act; or that it was not issued in sufficient time to enable the sheriff to enforce it; or that a direction was given, or other fraudulent or collusive means were used, by the plaintiff or his attorney, to prevent the service thereof. Id., 33, am'd. § 600. Relief of bail where principal is imprisoned on criminal charge. 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 offence, 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. L. 1845, ch. 231, 4 (4 Edm. 554), substitute for Co. Proc., 191. See Steelman e. Mattix, 20 Am. Rep. 389; Cathcart v. Cannon, 1 Johns. Cas. 28; Loftin e. Fowler, 18 Johns. 335. $601. Bail exonerated by death, etc.- Except in an action to recover a chattel, the bail must be exonerated where either of the following events occurs, before the expiration of the time to answer in an action against them: 1. The death of the original defendant. (1) 2. His legal discharge from the obligation to render himself amenable to the process, direction, or proceedings, with respect to which the undertaking of the bail was made. 3. His surrender to the sheriff of the county where he was arrested, as prescribed in this article. Where either event occurs, after the commencement of the action against the bail, the court may, in its discretion, impose the payment of the plaintiff's costs and expenses, incurred after the return of the execution against the person, as a condition of allowing the exoneration. And the court may, by an order, made upon notice to the adverse party, grant such further time as it deems just, after answer, for the surrender of the original defendant. In that case, his surrender, within the time so granted, has the same effect, as if it had been made before answer.(2) Substitute for 2 R. S. 380, 16 and 34, and Co. Proc., 191. (1) Gauntley v. Wheeler, 4 Lans. 491; Olcott v. Lilly, 4 Johns. 407; Merritt v. Thompson, 1 Hilt. 550; Hayes v. Carrington, 21 How. 143; s. c., 12 Abb. 179. (2) Gilbert v. Bulkley, 1 Duer, 668; Bank v. Reynolds, 20 How. 18; s. c., 12 Abb. 81. TITLE II. Injunction. ARTICLE 1. Cases where an injunction may be granted; granting and service of an injunction order. 2. Security. 3. Vacating or modifying an injunction order. ARTICLE FIRST. CASES WHERE AN INJUNCTION MAY BE GRANTED; GRANTING AND SERVICE OF AN INJUNCTION ORDER. SEO. 602. Writ of injunction abolished, and order substituted. 603. Injunction, when the right thereto depends upon the nature 604. Id.; when the right thereto depends upon extrinsic facts. 606. By whom injunction granted in other cases. 607. Proof necessary to procure injunction. 608. At what time the order may be granted. 609. When notice required or not required. Injunction pending an application. 610. Order must recite grounds; service of order. § 602. Writ of injunction abolished, and order substituted. The writ of injunction has been abolished. A temporary injunction may be granted by order, as prescribed in this article.* Part of Co. Proc., 218, am'd. Savage v. Allen, 54 N. Y. 458; Burch . Cavanaugh, 12 Abb. N.S. 410; Linden v. Hepburn, 5 How. 188; Howard v The provisions of Co. Proc., 224, relating to injunctions to suspend the general and ordinary business of a corporation, were revised in ch. 15 of the Revision which was not signed by the Governor.- ED. Ellis, 4 Sandf. 374; McCafferty v. Glazier, 10 How. 475; Crocker v. Baker, 3 Abb. 183; Ward v. Kelsey, 14 d. 106; Ramsey v. Erie Railway Co., 45 N. Y. 637 Heath v. N. Y. Gold Ex., 38 How. 168; s. c., 7 Abb. N. S. 251: People v. Horton, 5 Hun, 516; Turner v. Jackson, 14 Abb. N. 8. 266; Central Cross-Town R. R. Co. v. Bleecker, etc., 49 How. 233; Spears v. Mathews, 6 Hun, 489; Pfohl v. Sampson, 59 N. Y. 174. See notes to Voorhies' and Wait's Codes; also, 2 Wait's Pr. 1 et seq. § 603. Injunction, when the right thereto depends upon the nature of the action. Where it appears, from the complaint, that the plaintiff demands and is entitled to a judgment against the defendant, restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, would produce injury to the plaintiff, an injunction order may be granted to restrain it. The case, provided for in this section, is described in this act, as a case, where the right to an injunction depends upon the nature of the action. Co. Proc., 219, first clause, am'd. Gentil v. Arnand, 38 How. 94; 8. c., 1 Sweeney, 641; Hartt v. Harvey, 19 How. 245; s. c., 32 Barb. 55: Hulce e. Thompson, 8 How. 475; Brolestedt v. South Side R. R. Co., 55 N. Y. 220. $604. [Amended, 1877.] Id.; when the right thereto depends upon extrinsic facts. In either of the following cases, an injunction order may also be granted in an action: 1. Where it appears, by affidavit, that the defendant, during the pendency of the action, is doing, or procuring, or suffering to be done, or threatens, or is about to do, or to procure, or suffer to be done, an act, in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom.(1) 2. Where it appears, by affidavit, that the defendant, during the pendency of the action, threatens, or is about to remove, or to dispose of his property, with intent to defraud the plaintiff, an injunction order may be granted, to restrain the removal or disposition.(2) Substituted for the remainder of Co. Proc., 219. (1) Brooks v. Stone, 19 How. 395; Hovey v. McCrea, 4 id. 31; Malcolm . Miller, 6 id. 456. (2) Reubens v. Joel, 13 N. Y. 488; Perkins r. Warren, 6 How. 341; Olsen e. Smith, 7 id. 481; Vermilyea r. Vermilyea, 14 id. 470; Brewster t. Hodges, 1 Duer, 609. Whether simple contract creditor may enjoin: Mott v. Dunn, 10 How. Pr. 225; Mitchell v. Bettman, 25 Barb. 408; contra, Perkins v. Warren, 6 How. Pr. 341; Sebring v. Lant, 9 id. 346; and see Reubens v. Joel, 13 N. Y. (3 Kern.) 488. Note should be made of the fact that by 481, ante, "judgment" instead of "relief" (Co. Proc., 142), is to be re-demanded in the complaint. |