cretion of the magistrate] and acknowledged before the magistrate in substantially the following form: "An order having been made on the and day of eighteen hundred by A. B., a justice of the peace of the town of [or as the case may be] that C. D. be held to answer upon a charge of [stating briefly the nature of the crime], upon which he has been duly admitted to bail in the sum of dollars. "We [C. D., defendant, if the defendant join in the undertaking], of [stating his place of residence and his occupation] and E. F. [and G. H., stating place of residence and occupation], surety, or sureties [as the case may be], hereby undertake, jointly and severally, that the above-named C. D. shall appear and answer the charge 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 appear for judgment, and render himself in execution thereof; or if he fail to perform either of these conditions, 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.] Code Crim. Pro., § 568, as am'd L. 1882, c. 360. 102 N. Y. 588, 591; 125 id. 372; 35 N. Y. St. R. 280; 14 N. Y. Supp. 540. 131 Qualifications of bail. The qualifications of bail are as follows: 1. He must be a resident, and a house-holder or free-holder within the state, and, unless the magistrate otherwise direct, within the county; 2. He must be worth the amount specified in the undertaking, exclusive of property exempt from execution; but the magistrate, on taking bail, may require two sureties, or may allow two or more to justify severally in amounts less than that expressed in the undertaking, if the whole justification be equivalent to that of one sufficient surety. Code Crim. Pro., § 569. 4 Bosw. 632; 1 Wend. 35; 7 Abb. Pr. 73. 132 Notice of justification, when discretionary. Except as prescribed in the next section, the bail may, in the exercise of a just discretion, be taken, and may justify, without notice to the district attorney, or reasonable notice of the intention to give bail may be required by the court or magistrate, to be given to the district attorney. When given, the notice shall be as prescribed in the next section. Code Crim. Pro., § 570. 133 Same, when required; contents of notice; waiver. In the several cities of this state, if the crime charged be a felony, a previous notice in writing of at least two days, of the time and place of giving the bail, must be served upon the district attorney of the county, stating: 1. The names, places of residence and occupations of the proposed surety or sureties; 2. A general description of the real or personal property of the surety or sureties, in respect to which they propose to justify as to their sufficiency, with the incumbrances thereon, by mortgage, judgment or otherwise, if any. The district attorney may waive the giving of the notice herein provided for, or a shorter time than two days may be directed by the court or magistrate requiring the notice. Code Crim. Pro., § 571. 134 Affidavit of sureties. The surety or sureties must in all cases justify by affidavit, taken before the magistrate. The affidavit must state that each of the sureties possesses the qualifications provided in section 569. Code Crim. Pro., 8572. 81 N. Y. 629, aff'g 20 Hun, 288. 135 Further examination; questions and answers reduced to writing. The district attorney, or the magistrate, may thereupon further examine the sureties upon oath, concerning their sufficiency, in such manner as the magistrate may deem proper. The questions put to the sureties, and their answers must be reduced to writing, and must be subscribed by them. Code Crim. Pro., § 573. 136 Other testimony may be taken. The magistrate may also receive other testimony, either for or against the sufficiency of the bail, and may from time to time adjourn the taking of bail, to afford an opportunity of proving or disproving its sufficiency. Code Crim. Pro., § 574. 137 Order of allowance or disallowance; papers to be filed. When the examination is closed, the magistrate must make an order, either allowing of disallowing the bail, and must forthwith cause the same, with the affidavits of justification, and the undertaking of bail, to be filed with the clerk of the court to which the depositions and statement must be sent, as prescribed in section 221.* Code Crim. Pro., § 575. 138 Order discharging defendant. Upon the allowance of the bail and the execution of the undertaking, the court or magistrate must make an order, signed by him, with his name of office, for the discharge of the defendant, to the following effect: 66 To the sheriff of the county of [or, in the city and county of New York," to the keeper of the city prison of the city of New York: "] "A. B., who is detained by you on a commitment to answer a charge for the crime of, [designating it generally,] having given sufficient bail to answer the same, you are commanded forthwith to discharge him from your custody." Code Crim. Pro., § 576. 139 If bail disallowed. If the bail be disallowed, the defendant must be detained in custody until lawfully discharged. Code Crim. Pro., § 577, as am'd L. 1882, c. 360. Bail, upon an Indictment before Conviction. 140 For misdemeanor, officer to take defendant before a magistrate if required. When the crime charged in the indictment is a misdemeanor, the officer serving the bench-warrant must, if required, take the defendant before a magistrate in the county in which it is issued, or in which he is arrested, for the purpose of giving bail as prescribed in sections 302† and 305. Code Crim. Pro., § 578. 21 How. 85; 30 id. 202. 141 For 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.§ Code Crim. Pro., § 579. 77 N. Y. 39, aff'g 14 Hun, 90; 20 N. Y. Supp. 577. 142 When bail taken and by whom. 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. Code Crim. Pro., § 580. 143 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 clerks in open court or the magistrate, in substantially the following form: "An indictment having been found on the 18, 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, day of "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 appear for judgment, and render himself in execution thereof; or if he fails to perform either of these conditions, that we will * Commitment, § 34 +Bench Warrant, § 3. + Arraignment, § 5. pay to the people of the state of New York the sum of dollars" (insert ing the sum in which the defendant is admitted to bail). Code Crim. Pro., § 581, as am'd L. 1882, c. 360, and L. 1895, c. 880. 7 N. Y. Supp. 219. 144 Sections applicable hereto. The provisions 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. Code Crim. Pro., § 582. Bail upon an Appeal. 145 Who may admit to bail. In the cases in which the defendant may be admitted to bail upon an appeal, as provided in section five hundred and fiftysix, 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. Code Crim. Pro., § 583, as am'd L. 1895, c. 880. 146 What notice of the application to be given. 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. Code Crim. Pro., § 584. 147 Qualifications of bail, and how put in. The sureties must possess the qualifications, and the bail must be put 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. Code Crim. Pro., § 585. Deposit Instead of Bail. 148 Deposit, when and how made. The defendant, at any time after an order admitting him to bail, instead of giving 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. Code Crim. Pro., § 586, as am'd L. 1892, c. 220. 102 N. Y. 588; 39 Hun, 311, 314; 46 N. Y. St. R. 66; 19 N. Y. Supp. 969. 149 May be made after bail given. If the defendant have given 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. Code Crim. Pro., § 587. 150 Bail may be given after deposit. 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. Code Crim. Pro., § 588. 102 N. Y. 588. 151 Deposit, how applied. 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. Code Crim. Pro., § 589. 102 N. Y. 592; 22 Civ. Pro. 177; 46 N. Y. St. R. 67; 19 N. Y. Supp. 969. Surrender of the Defendant. 152 Surrender. 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. Code Crim. Pro., § 590. 102 N. Y. 588, 591. 153 Arrest for the purpose of 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. Code Crim. Pro., § 591. 154 Refunding deposit upon voluntary surrender. 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 the certificate. Code Crim. Pro., § 592. 102 N. Y. 588, 591; 46 N. Y. St. R. 66. Forfeiture of the Undertaking of Bail or of the Deposit of Money. 155 When 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. Code Crim. Pro., § 593. 17 Wend. 374; 5 Hill, 647; 10 Wend. 431; 1 Park. 392, 567; 7 Hill, 33; 39 Barb. 73; 27 id. 58; 2 N. Y. 82; 17 Wend. 252; 2 Hilt. 523; 5 Den. 58; 3 Hill, 570; 1 Den. 454; 44 Barb. 118; 67 N. Y. 585; 136 N. Y. 482; 137 id. 601; 50 N. Y. St. R. 927; 49 id. 909. 156 When and how the forfeiture may be discharged. If, at any time before the final adjournment of the court, the defendant appear and satisfactorily excuse his neglect, the court may direct the forfeiture of the undertaking or deposit to be discharged, upon such terms as are just. Code Crim. Pro., § 594. 5 Daly, 527; 136 N. Y. 482; 49 N. Y. St. R. 909. 157 Forfeiture of bail, how enforced. If the forfeiture be not discharged, as provided in the last section, the district attorney may, at any time after the adjournment of the court, proceed against any surety upon his undertaking. Such proceeding shall be by action only, except in the city and county of New York, where it shall be in the method now prescribed by special statute.* Code Crim. Pro., § 595. 136 N. Y. 482; 49 N. Y. St. R. 909. 158 Deposit, when forfeited, how disposed of. If, by reason of the neglect of the defendant to appear, as provided in section 593, money deposited instead of bail is forfeited, and the forfeiture be not discharged or remitted, as provided in sections 594 and 597, the county treasurer with whom it is deposited may at any time after the final adjournment of the court apply the money deposited to the use of the county. Code Crim. Pro., § 596. 159 Remission of forfeiture. After the forfeiture of the undertaking or deposit, as provided in this article,† the court directing the forfeiture, the county This subject, §§ 155-160. * L. 1882, c. 410, § 1480. court of the county, or in the city of New York, the supreme court may remit the forfeiture or any part thereof, upon such terms as are just. Code Crim. Pro., § 597, as am'd L. 1895, c. 880. 1 N. Y. Cr. R. 538; 64 Hun, 171; 38 N. Y. St. R. 801; 14 N. Y. Supp. 778; 19 id. 134; 36 id. 547; 92 Hun, 375. 160 Application therefor; notice; terms. The application must be upon at least five days' notice to the district attorney of the county served with copies of the affidavits and papers on which it is founded, and can be granted only upon payment of the costs and expenses incurred in the proceedings for the enforcement of the forfeiture. Code Crim. Pro., § 598, as am'd L. 1882, c. 360. 1 N. Y. Cr. R. 538; 64 Hun, 171; 19 N. Y. Supp. 134; 92 Hun, 375. Re-commitment of the Defendant, after having given Bail or Deposited Money instead of Bail. 161 By whom and in what cases. The court to which the committing magistrate returns the deposition and statement, or in which an indictment or appeal is pending, or to which a judgment on appeal is remitted to be carried into effect, may, by an order entered upon its minutes, or if the court be not in session, any judge thereof may direct the arrest of the defendant, and his commitment to the officer to whose custody he was committed at the time he was admitted to bail, and his detention until legally discharged, in the following cases: 1. When, by reason of his failure to appear, he has incurred a forfeiture of his bail, or of money deposited instead thereof, as provided in section five hundred and ninety-three. 2. When it satisfactorily appears to the court that his bail, or either of them, are dead, or insufficient, or have removed from the state. 3. Upon an indictment being found in the cases provided in section 306. Code Crim. Pro., § 599, as am'd L. 1882, c. 360. 162 Contents of the order. The order for the recommitment of the defendant must recite, generally, the facts upon which it is founded, and direct that the defendant be arrested by any sheriff, constable, marshal or policeman in this state, and committed to the officer to whose custody he was committed, at the time he was admitted to bail, to be detained until legally discharged. Code Crim. Pro., § 600. 163 Defendant may be arrested in any county. The defendant may be arrested pursuant to the order, upon a certified copy thereof, in any county, in the same manner as upon a warrant of arrest; except, that when arrested in another county, the order need not be endorsed by a magistrate of that county. Code Crim. Pro., § 601. If 164 For failure to appear for judgment, defendant must be committed. the order recite, as the ground upon which it is made, the failure of the defendant to appear for judgment upon conviction, the defendant must be committed according to the requirement of the order. Code Crim. Pro., § 602. 165 For other cause, he may be admitted to bail. If the order be made for any other cause, and the crime be bailable, the court may fix the amount of bail, and may direct in the order, that the defendant be admitted to bail in the sum fixed, which must be specified in the order. Code Crim. Pro., § 603. 166 Bail in such case, by whom taken. When the defendant is admitted to bail, the buil may be taken by any magistrate in the county, having authority, in a similar case, to admit to bail upon the holding of the defendant to answer before indictment, as prescribed in sections 557 and 558, or by any other magistrate to be designated by the court. Code Crim. Pro., § 604. 167 Form of the undertaking. When bail is taken upon the recommitment of the defendant, the undertaking of bail must be in substantially the following form: |