
    Dale vs. Radcliffe and Cutter.
    Where defendants, on being arrested under a judge’s order, offer bail to the plaintiff’s attorneys, and induce the latter to examine and accept the bail, and to approve the undertaking, by which means the defendants procure their discharge from custody, this is an act on the part of the defendants, which assumes that it was proper to require bail of them; and amounts to a waiver of any objection to having been held to bail.
    Consequently, the defendants cannot, afterwards, move to discharge, or vacate the order of arrest.
    APPEAL from an order made at a special term, refusing to vacate an order of arrest.
    
      D. Lord, for the appellants.
    
      J. TV. Edmonds, for the plaintiff.
   By the Court, Clerke, J.

The defendants were arrested on Saturday the 14th June, 1856, under a judge’s order; and at 10 o’clock in the evening of that day, their attorney called on the attorneys of the plaintiff, and proposed that they should then accept bail. After considerable hesitation they consented, on the condition that the proposed bail should be forthwith examined by them. The bail were, accordingly, examined as to their qualifications; their depositions were written down and signed, and then delivered to the defendants’ attorney to be attested in the usual manner, before a commissioner. After the examination, the plaintiff’s attorneys indorsed upon an undertaking, which was produced by the defendants’ attorney, a consent that the sheriff should accept this bail. The consent being presented to the sheriff, he discharged the defendants from custody that night, or on the following day. The indorsement on the undertaking was in the following words: “We approve of the within undertaking, and are satisfied with the sureties. June 14th, 1856.” After the lapse of several months, (on the 26th February last,) a motion was made, on behalf of the defendants, to discharge or vacate the order of arrest, before Judge Peabody, who denied it, on the ground that the defendants had waived their right to move to vacate the order, by proffering bail to the plaintiff’s attorneys, as above stated, by inducing them to examine and accept the bail, and by these measures procuring their discharge from custody.

By this consent, and by indorsing their satisfaction on the undertaking, the plaintiff’s attorneys relinquished their right to except, so that no objection to the bail could afterwards be made, and no further examination of them be demanded. The bail was, in short, perfected by the positive action of the defendants.

It is insisted by the defendants’ counsel, that as the code (§204) provides that a defendant may apply, on motion, to vacate the order of arrest, at any time, “ before the justification of bail,” and1 as the defendants did not literally justify in this case,' after exception regularly taken, in the ordinary way, that they are not precluded by the arrangement above referred to, from moving to set aside the order of arrest.

Undoubtedly the court in this district, at general term, decided in Barber v. Hubbard, (3 Code Rep. 171,) that a motion of this description may be made at any time before justification, even after the expiration of the time for the party to except, and where, consequently, there could be no justification, the bail having been perfected by the mere lapse of time. This is contrary to some decisions in other districts, and in. other courts ; where it has been held, that the time for excepting having elapsed, and the bail having consequently become perfect in analogy to the provision of the code, (§ 204,) the defendant waived his objection to having been arrested or held to bail. Judge Mitchell placed the decision of this court on the ground that mere inactivity in allowing the time to expire for the opposite party to except to bail, without the defendants moving in the mean time, did not amount to a waiver; and in this respect the court in this district differed, and still differs, from the decisions to which I have alluded. It does not, however, by any means, contend that in order to debar a defendant from making this motion, there must be a literal or actual justification-; but to debar him he must take some step in the cause which, from it nature, assumes that it was proper to require bail. He must do something affirmatively; and then, in analogy to § 204, it may be reasonably supposed that he has waived any objection to having been held to bail. It is then too late for him to ask to have the order of arrest vacated.

[New York General Term,

September 14, 1857.

This section declares, in effect, that if he justifies, he waives the right; it is a fair indication that he has not the inclination or ability to disturb the order ; but merely refraining from doing this, is not sufficient assurance of any such acquiescence. Where personal liability is concerned it is not expedient to infer intention from negative conduct—from mere omission.

In the case before us the defendants, voluntarily and deliberately, took a step fully equivalent to the affirmative act of a . technical justification. They offered bail to the plaintiff’s attorneys ; they induced them to examine this bail; and after the same kind of examination that takes place on justification, the attorneys^1 at the solicitation of the defendants’ attorney, wrote their approval on the undertaking—-precisely equivalent to the allowance of bail by a judge, and producing the same effect— the discharge of the defendants from custody. In the language of Judge Mitchell, in Barber v. Hubbard, this' was an act which from its nature assumed that it was proper to require bail, and may be considered, very justly, a waiver of any objection to having been held to bail.

The order appealed from should be affirmed, with costs.

Mitchell, Clerke and Davies, Justices.]  