which a prisoner had been arrested upon a warrant of a police magistrate for the purpose of an examination before indictment. So also was the case of Clark v. Cleveland, 6 Hill, 344.

§ 579. In felony, to deliver him into custody.-If the crime charged in the indictment be a felony, the officer arresting the defendant must deliver him into custody, according to the command of the bench-warrant, as prescribed in section 301.

§ 580. Taking bail, when offense is bailable.-When the defendant is so delivered into custody, if the felony charged be bailable, and the amount of bail have been fixed, bail may be taken by the judge presiding in the court in which the indictment was found, or to which it is sent or removed, or by any magistrate in the county belonging to the class mentioned in the second subdivision of section 557.

See notes under section 557, ante.

581. Bail, how put in; form of undertaking.-The bail must be put in by a written undertaking, executed by a sufficient surety, with or without the defendants, in the discretion of the magistrate, and acknowledged before the court or its clerk in open court or the magistrate, in substantially the following form: "An indictment having been found on the

18

day of in the county court in the county of Albany [or as the case may be], charging A. B. with the crime of [designating it generally], and he having been duly admitted to bail in the sum of

dollars:

1

"We, A. B., defendant [if the defendant join in the undertaking] and C. D., surety or sureties, as the case may be, of [stating his place of residence and occupation] and E. F., of [stating his place of residence and occupation] hereby jointly and severally undertake, that the above-named A. B. shall appear and answer the indictment above mentioned, in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the court; and, if convicted, shall ap pear for judgment, and render himself in execution thereof; or if he fails to perform either of these condition, that we will pay to the people of the state of New York the sum of dollars," [inserting the sum in which the defendant is admitted to bail.] Am'd by chap. 880 of 1895. In effect January 1, 1896.

Amended by chap. 360 of 1882.

This amendment, in the first clause of the original section, changed "defendant" into "defendants," and introduced the words "court or its clerk in open court or," and, in the form given, inserted the words "jointly and severally."

See section 593, post.

The failure of the defendant to acknowledge his signature to an undertaking for his appearance for trial does not affect the liability of the sureties, who have properly executed it. People v. Hammond, 26 St. Rep., 486; 4 Silv. (Sup. Ct.), 271; 7 N. Y. Supp., 219.

§ 582. Sections applicable to qualifications of bail, to putting in and justifying bail, and to incidental proceedings.-The pro visions contained in sections 569 to 577, both inclusive, apply to

the qualifications of the sureties, and to all the proceedings respecting the putting in and justification of bail, and incidental thereto.

ARTICLE IV.

BAIL UPON AN APPEAL.

SECTION 583. Who may admit to bail.

584. Notice of the application, when required.
585. Qualifications of bail, and how put in.

§ 583. Who may admit to bail.-In the cases in which the defendant may be admitted to bail upon an appeal, as provided in section 556, the order admitting him to bail may be made, either by the court from which the appeal is taken, or a judge thereof, or by the appellate court, or a judge thereof, or by a judge of the supreme court.

Am'd by chap. 880 of 1895. In effect January 1, 1896.

An application, under this section, is addressed to the sound discretion of the court or officer. People v. Bowe, 58 How., 393. It was held, in this case, that it was not the right of the prisoner, after conviction, to be let to bail, and that the bare possibility that an error may have been committed, does not entitle the prisoner to be bailed. It was also held that application, in such case, to admit to bail should be entertained only in cases of great question and difficulty.

§ 584. Notice of the application, when required.-The court or officer to whom the application for bail is made may require such notice thereof as he deems reasonable, to be given to the district attorney of the county in which the verdict or judgment was originally rendered.

§ 585. Qualifications of bail, and how put in.-The sureties must possess the qualifications, and the bail must be put in, in all respects, in the manner prescribed by sections 569 to 577, both inclusive; except that the undertaking must be to the effect that the defendant will, in all respects, abide the orders and judgment of the appellate court upon the appeal, and will surrender himself in execution of the judgment, if the certificate of reasonable doubt be vacated, as provided in § 529.

Am'd, ch. 427 of 1897.

ARTICLE V.

DEPOSIT INSTEAD OF BAIL.

SECTION 586. Deposit, when and how made.

587. May be made after bail given, and before forfeiture; and in such case bail discharged.

588. Bail may be given after deposit; and in such case money deposited to be refunded.

589. Deposit to be applied to payment of judgment of fine, and surplus to be refunded.

§ 586. Deposit, when and how made.-The defendant, at any time after an order admitting him to bail, or a witness committed in default of an undertaking to appear and testify, instead of entering into such an undertaking, may deposit with the county

treasurer, of the county in which he is held to answer or appear, the sum mentioned in the order or commitment; and upon delivering to the officer, in whose custody he is, a certificate of the deposit, he must be discharged from custody.

Amended by chap. 220 of 1892.

This amendment extended this provision to the case of a witness committed in default of an undertaking to appear and testify.

Disposition of deposit.-Moneys deposited by a third person in lieu of bail for a defendant in a criminal action does not become the property of such defendant for the purpose of paying and satisfying his obligations in civil actions entirely disconnected from the criminal action and the subject matter thereof. McShane v. Pinkham, 46 St. Rep., 66; 19 N. Y. Supp., 970.

The recorder of the city of Cohoes has no authority to accept money in lieu of bail. Eagan v. Stevens, 39 Hun, 314. This section, which provides for a deposit in certain cases with the county treasurer, has no application to such a case. Id. The deposit should have been made with the treasurer and not with the recorder. McShane v. Pinkham, 46 St. Rep., 66.

The county treasurer has no authority to take a deposit in lieu of bail except by virtue of this and the following sections, and the deposit must be made in strict compliance with the statute. People ex rel. Gilbert v. Laidlaw, 2 St. Rep., 537; 102 N. Y., 592.

This section authorizes the deposit to be made by the defendant and by no one else. Id.

It is the plain purpose of these sections to require that the money so depos ited shall, for the purposes of the deposit, be in fact the money of the defendant. Id.

In all cases where money is deposited in lieu of bail, it may be applied in payment of any fine imposed, and the surplus, if any, after the fine has been satisfied, must be returned to the defendant. Id.

Any person, making the deposit for the defendant, must be assumed to have known the provisions of these sections, and the money is thus devoted to the purposes of the statute, and to the use of the defendant. Id.

§ 587. May be made after bail given, and before forfeiture; and in such case bail discharged.-If the defendant have giver bail, he may, at any time before the forfeiture of the undertaking, in like manner deposit the sum mentioned in the undertaking; and upon the deposit being made the bail is exonerated. See notes under preceding section.

§ 588. Bail may be given after deposit; and in such case money deposited to be refunded.-If money be deposited, as provided in the last section, bail may be given, in the same manner as if it had been originally given upon the order for admission to bail, at any time before the forfeiture of the deposit. The court or magistrate before whom the bail is taken must thereupon direct, in the order of allowance, that the money deposited be refunded by the county treasurer to the defendant; and it must be refunded accordingly.

See notes under section 586, ante.

§ 589. Deposit to be applied to payment of judgment of fine, and surplus to be refunded.-When money has been deposited, if it remain on deposit and unforfeited at the time of a judgment for the payment of a fine, the county treasurer must, under direction of the court, apply the money in satisfaction

thereof, and after satisfying the fine, must refund the surplus, if any, to the defendant.

See notes under section 586, ante.

Money deposited in lieu of bail is, for the purposes of the criminal action, to be considered as the property of the defendant; and, though it was in fact furnished by a third person, it may be applied in payment of any fine imposed upon the defendant in the criminal action. People ex rel. Gilbert v. Laidlaw, 2 St. Rep., 537; 102 N. Y., 588; McShane v. Pinkham, 46 St. Rep., 66; 19 N. Y. Supp., 971.

ARTICLE VI.

SURRENDER OF THE DEFENDANT.

SECTION 590. Surrender, by whom, when, and how made.

591. By whom, when and where, defendant may be arrested for the purpose of a surrender.

592. On surrender before forfeiture, money deposited to be refunded. Order therefor, how obtained.

§ 590. Surrender, by whom, when, and how made.-At any time before the forfeiture of the undertaking, any surety may surrender the defendant in his exoneration, or the defendant may surrender himself, to the officer to whose custody he was committed at the time of giving bail, in the following manner:

1. A certified copy of the undertaking of the bail must be delivered to the officer, who must detain the defendant in his custody thereon, as upon a commitment, and by a certificate in writing, acknowledge the surrender;

2. Upon the undertaking and the certificate of the officer, the court in which the indictment or the appeal, as the case may be, is pending, may, upon a notice of five days to the district attorney of the county, with a copy of the undertaking and certificate, order that the bail be exonerated; and on filing the order and the papers used on the application, the bail is exonerated accordingly.

See notes under section 586, ante.

§ 591. By whom, when and where, defendant may be arrested for the purpose of a surrender.-For the purpose of surrendering the defendant, any surety, at any time before he is finally charged, and at any place within the state, may himself arrest him, or by a written authority indorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so.

§ 592. On surrender before forfeiture, money deposited to be refunded. If money have been deposited instead of bail and the defendant at any time before the forfeiture thereof surrender himself to the officer to whom the commitment was directed in the manner provided in section 590, the court must order a return of the deposit to the defendant, upon producing the certificate of the officer showing the surrender, and upon a

notice of five days to the district attorney, with a copy of this certificate.

See notes under section 586, ante.

People ex rel. Gilbert v. Laidlaw, 2 St. Rep., 537; 102 N. Y., 592.

ARTICLE VII.

FORFEITURE OF THE UNDERTAKING OF BAIL, OR OF THE DEPOSIT OF MONEY.

SECTION 593. In what cases, and how ordered.

594. When and how forfeiture may be discharged.

595. Forfeiture of bail, to be enforced by action.

596. Deposit of money when forfeited, how disposed of.
597. Remission of forfeiture.

598. Application to be on notice.

§ 593. In what cases, and how ordered.-If, without sufficient excuse, the defendant neglect to appear for arraignment, or for trial or judgment, or upon any other occasion where his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes; and the undertaking of his bail, or the money deposited, instead of bail, as the case may be, is thereupon forfeited.

See notes under section 568, ante.

When to appear. Where a criminal is bound by recognizance to appear at court for trial, he is bound to remain during the trial to answer when he is called any time until the conclusion thereof, and the trial may be postponed from day to day, or for several days, without discharging his sureties. People ex rel. Van Aken v. Milham, 100 N. Y., 273; 4 N. Ÿ. Cr., 132. Under a recognizance for the appearance of the defendant before the justice on a specified day, and from time to time as directed by the said justice, he is not required thereby to appear upon any and every adjourned day, but only when directed by the justice. People v. Scott, 67 N. Y., 585. If the proceedings are adjourned at a time when the defendant is not present, there cannot be a forfeiture of the recognizance at a subsequent adjourned day. Id.

Forfeiture of recognizance.-Under this section, if the principal makes default and his non-appearance is entered in the minutes, the recognizance becomes ipso facto forfeited. People v. Bennett, 49 St. Rep., 910. See same case on appeal, 50 St. Rep, 926; 136 N. Y., 482. No further or formal order is necessary to fix the liability of the surety. Id. Judgment can be entered upon filing the recognizance and a certified copy of the minutes of the court. Id.

Where an order of forfeiture of bail is made on failure of the principal to appear, the court has done all that the statute requires to make the forfeiture complete. People v. Bennett, 50 St. Rep., 926; 136 N. Y., 482.

A failure of the clerk to enter such order, until after the principal has been surrendered, does not render the order nugatory. Id.

Where a principal makes default and his non-appearance is entered in the minutes of the court, the recognizance becomes ipso facto forfeited, and no further or formal order is necessary to fix the liability of the sureties. Id.

It then accrues and becomes absolute upon the record. Id. The subse quent surrender of the principal does not of itself work an exoneration of the sureties. Id. An arrest of the principal upon a bench warrant after a forfeiture, his discharge upon his entering into another recognizance, and his appearing and answering in accordance therewith, constitute no defense to an action upon the first recognizance. Id.