
    SERAPIO ARTEAGA, Appellant, v. WILLIAM C. CONNER, Sheriff, et al., Respondents.
    
      Sheriff—liability of, as bail for defendant arrested in civil action— right to re-an'rest defendant.—Valse imprisonment.
    
    The provision of section SOI, Code of Procedure, making the sheriff liable as bail for a party arrested in a civil action “if bail be not given or justified,'1'1 must be construed as meaning, if bail be not given, or do not justify as provided by the law and practice of the proceeding toward justification, provided in the foi'egoing sections.
    
    Consequently, if the plaintiff’s attorney consent to a postponement of the justification of defendant’s sureties, though for an indefinite time, the sheriff is not liable as bail, and has no right to re-arrest the defendant, until an actual default has been made by the sureties, and no mere lapse of time will give him this right. In case of such re-arrest, before default, proof of notice by the sheriff to the defendant that he would expect the undertaking to be approved of at once by the judge, on justification, or by the plaintiff’s attorney, affords no defense to an action for false imprisonment, nor does ignorance of the existence of the stipulation postponing justification constitute a defense.
    Before Sedgwick, Speir and Freedman, JJ.
    
      Decided April 5, 1880.
    
      Appeal from judgment entered upon the verdict of jury, in favor of defendants, as directed by the court.
    The action was for damages for false imprisonment. In an action of Leitch against the present plaintiff, an order of arrest was made, and under it the present defendant, through his deputy, arrested the present-plaintiff. The plaintiff, giving bail, was discharged by the sheriff.
    The justification of the sureties was adjourned from time to time, by the consent of the attorneys of the-parties in that action, until the attorneys for the then plaintiff consented, in writing, that the then defendant “ have five days after the decision of the motion ta vacate the order of arrest, within which to serve notice of justification.” Some six months after this, no notice being served in the meantime, the deputy of the sheriff sent to the then defendant’s attorneys notice that the bail must justify. On the trial it was considered that the sheriff received no answer to the notice, and was not informed of the true facts of the case. The sheriff assuming to be the bail of defendant, under section 201 of the Code of Procedure, arrested the present plaintiff and remanded him to the custody of the keeper of the common jail, who was made a defendant.
    The court directed the jury to find for defendants, and the plaintiff excepted.
    
      Nelson Smith & Leavitt, attorneys, and John Brooks Leavitt, of counsel, for appellant, urged, among other things:
    I. Whoever arrests a citizen, not only must do so under some legal authority, but always does so at the peril of any alleged authority being legal (Pratt v. Hill, 16 Barb. 303).
    II. This arrest was made by virtue of section 201 of the Code, which provides that if the bail do not justify, the sheriff himself shall be liable as bail; and that being so, the authorities are that the sheriff may, as bail, take and surrender the defendant in the action, without process (Metcalf v. Stryker, 31 N. Y. 255 ; Sartos v. Merceques, 9 How. 188 ; Seaver v. Genner, 10 Abb. Pr. 256). The sheriff has no greater liability than that of bail (Gallarati v. Orser, 27 N. Y. 324).
    III. It is obvious that the sheriff has not all the rights of bail, because the bail may surrender their principal, the defendant, immediately after they give their bond, if they so choose; but, the sheriff has no right of re-arrest in any event until ten days, and in cases of notice of non-acceptance, twenty days thereafter. The sheriff has no greater rights than the bail. How, will it be pretended for an instant that if bail has been given in an action, and that action has gone on to trial and been tried, and the defendant has paid the judgment or has succeeded on the trial, that the bail have a right to re-arrest their principal, simply because they have not been notified of the status of the case ? The fact of a right to an arrest must precede an arrest. Want of notice is no defense (Deyo v. Van Valkenburg, 5 Hill, 242).
    IV. Bail are sureties, and are entitled to the benefit of the general principle relative to sureties, that dealings between their principal and the creditor, of which they have no notice, or to which they do not consent, discharges their liability (Rathbone v. Warren, 10 Johns. 586 ; Clark v. Niblo, 6 Wend. 237).
    If, therefore, the bail are under no liability in law, they certainly have no right of arrest based only upon that liability, and the sheriff being liable as bail, is to "be measured by the same rule. Any liability on the sheriff’s part was to the plaintiff, and the plaintiff, having given the stipulations extending time for justification, could not have recovered from the sheriff, because she had, if any damage had ensued, contributed to it. It could not be possible for the plaintiff to recover in any action against the sheriff (Dickson v. Frazer, 9 Sun, 191, and cases supra).
    
    V. The sheriff, however, had notice of this stipulation. On November 20,1876, he sent from his order of arrest department a letter claiming that the sureties had not justified, and requesting that they be approved of at once. The letter was signed by W. H. Quincy, who was his deputy sheriff in charge of the order of arrest department at that time. And the attorneys immediately responded thereto by sending over to his office a copy of the stipulation of July 26. This stipulation and an answering letter were delivered at the sheriff’s office during office hours, at the order of arrest department, with the clerk behind the desk, known to be such by the person making the service. This was sufficient under 2 R. S. 285 (6 ed. vol. 3, p. 447, § 46).
    •VI. If, however, it be held that the sheriff had a right to arrest the plaintiff, in the absence of being notified of the status of the case, and that the foregoing was not notice, then we say that just as soon as the sheriff was notified of this stipulation that he was exonerated ; he was bound to let the plaintiff go, and was liable to him in an action for false imprisonment, for every moment that he detained him thereafter.
    Legal liabilities depend upon all provisions of law in existence at the time of the transactions. One of the provisions of law when this bail bond was given, was that the time for serving notice of non-acceptance of bail, or notice of justification, might be enlarged by an order of a judge (Old Code, § 405 ; Burns v. Robbins, 1 Code, 62 ; 1 Chitty R., first 7 or 8 cases). Another provision was that such time might be enlarged by a stipulation in writing, duly signed (Rule 16). An action of false imprisonment will lie where the process is misused, even though the arrest be lawful (Holley v. Mix, 3 Wend. 350 ; Doyle v. Russell, 30 Barb. 300; Espinasse Dig. 332).
    
      VII. The arrest and imprisonment were false upon another ground. The onus of justifying an arrest lies upon him who makes it. The law favors the liberty of the subject to such an extent that a plaintiff in an action for false imprisonment need only show the fact of imprisonment (Holroyd v. Doncaster, 3 Bing. 492). What is the justification here % a fancied liability as bail, and power under section 189 given to Erb to arrest plaintiff, be it observed. But the sheriff did not pursue the statute.' He must, if he is liable as bail, take the same steps as the bail. He must either arrest the defendant himself, or indorse a written authority on a certified copy of the bail bond, to any suitable person (Code of Pro. 189). He did not empower Erb by any indorsement on a certified copy of the undertaking, but writes on a separate piece of paper what he calls a remand, and annexes it to the original undertaking. So 'that, even if he had a legal right to make the arrest, having done it in an illegal manner, the action lies.
    Vanderpoel, Green & Cuming, attorneys, and Almon Goodwin, of counsel, for respondent.
   By the Court.—Sedgwick,

No authorities are cited that decide the question on this appeal, and it must be decided upon general principles. The plaintiff in this case, having, after his arrest in the action of Leitch against him, given bail, was entitled (Code Pro. § 187), to his discharge from custody, and the sheriff did discharge him. This discharge was a matter of right, which a prisoner is entitled to enjoy, at any time before execution. There seems to be no reason to think that it may not be exercised repeatedly in the same action, as often as he may, by surrender, or for other reason, be returned to custody.

Under the Revised Statutes, a defendant arrested had. the same right (2 R. S. 348, § 11 et seq.), and upon, his discharge,. the sheriff incurred a direct responsibility to the plaintiff, that the defendant"should put in special bail. If the defendant did not put in special bail, the enforcement of the sheriff ’ s responsibility was begun by entering a rule requiring the sheriff to put in special bail, within twenty days after service of notice of the rule. If the bail were not perfected within this twenty days, upon filing an affidavit of service of notice of such rule, another rule might be entered, that an attachment issue against the sheriff. In the proceedings upon such attachment the plaintiff’s rights were to be enforced, and the sheriff’s indemnity was the right to prosecute the bond given to him by the defendant, and recover all damages he might have sustained by the neglect of the defendant to put in special bail. A noticeable and primary part of this plan is that, so far as the immediate action was concerned, the discharge from custody was final between the sheriff and the defendant, and the plaintiff, thereafter, looked for his remedy in the premises, not to the defendant, but to the sheriff. The Code of Procedure did not disregard this notion of the sheriff’s duty and right, but modified it. It did not change the quantum of responsibility to the plaintiff. It did not lessen the defendant’s right to be discharged. It gave the sheriff a new power of protecting himself against defendant, by making him his bail, and therefore authorized him, under proper circumstances, to surrender or recapture the defendant. By section 186 of the Code of Procedure, the defendant, at any time before execution, shall be discharged from the arrest. By section 193 (lb.) the sheriff or defendant may give to the plaintiff notice of justification of the bail. By section 196 (lb.) if the judge find the bail sufficient, he shall indorse his allowance on the examination, “ and the sheriff shall thereupon be exonerated from liability.” By section 201 (lb.) “if, after being arrested, the defendant escape, or 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 “at any time before process against the person of the defendant to enforce an order or judgment in the action.” By section 203, the bail taken upon the arrest, unless they or other bail justify, shall be liable to the sheriff for damages which he may sustain by reason of such omission.

It is evident that the sheriff had two diverse obligations, one to the defendant arrested, and the other to the plaintiff. These are not altogether correlative, although at certain points they may be. The fact of giving sufficient bail by the, law as it stood before the Revised Statutes; by the Revised Statutes, and by the Code of Procedure, entitled the defendant to be discharged, and the sheriff was indemnified by the sufficiency of the bail. This is an affirmative, positive right, and it should be guarded on grounds of public policy, as well as of private law. The statute should not be, if it can be avoided, construed so as to attenuate it to an insignificant or formal privilege. What is the substance of this right if, immediately after the. discharge, the sheriff becomes bail for him in such a sense that he may forthwith, as other bail may, re-arrest the defendant % I say this only for the sake of construing the statute in other parts. The learned counsel for the respondent did not claim that the sheriff would have such a right. Such being the rights of a defendant arrested, a point must be found when that right is brought, by the law, to an end. Statutes of this kind are to be construed in favor of the defendant, .when it is possible at the same time to give the statutes a complete interpretation. That point is indicated by the words of section 201, “ if the bail be not given or justified the sheriff shall himself be liable as bail.” These words are not full or' explicit, and the implications of the phrase “if the bail be not justified” must be considered. The right of the sheriff to' re-capture, growing from his power as bail, must be shaped and conform to the other equally certain right' of the defendant to remain at large, after he has given sufficient bail. The words refer to the proceeding toward justification prescribed in the previous sections, and mean, if the bail do not justify in it. In a literal sense, the bail do not justify at any time before they are required to justify ; but the real sense is, when they do not justify, as required by the law and practice of -the proceeding, and there must be some default or failure on their part in this regard. It is the common practice to have justification of sureties adjourned from time to time. Does the sheriff have the right to re-arrest, unless the allowance of the judge is given on the day first noticed for justification (See Overill v. Durkee, 2 Abb. Pr. 383). But it is argued that this right of adjournment should not be exercised indefinitely, to the injury of the sheriff' or at his risk. It may be assumed that the sheriff should not be imperiled by an unreasonable delay, but the remedy is to have relief from the consequences and the character of the delay. Certainly, if the delay, although requested by defendant, is consented to by the plaintiff, there can be no inference that the sureties have failed to justify, or that they are not sufficient; and the result, at most, would be that it would be unreasonable and not within the meaning of the statute, for the sheriff to be held by the plaintiff as bail. This would relieve him as bail, and would not authorize an arrest by his power as bail.

The, sheriff must show the sufficient cause of rearrest ; that is, he must show that he has become bail. He must therefore show that the sureties failed,to justify, or that there was a default, in this respect. The mere lapse of time will not show this. This obligation is grounded upon the meaning of section 201, but it arises upon the general duty to show sufficient and legal cause for depriving a man of liberty. In this case, the only justification shown was a remand upon the original undertaking. This was not enough. It only showed that the plaintiff had once given bail and had been discharged. It was necessary to show, in addition, that the sureties had failed to justify. Suppose an undertaking, after the remand, had been offered with the same sureties, what could the sheriff have given as reason for not enlarging the prisoner ? They were presumed to be sufficient, he having once passed upon that. He could not correctly say that they had failed to justify. The sheriff had, or might have done all that the statute required him to do, to relieve himself from responsibility to the plaintiff in the first instance. He would come under responsibility as bail for rthe first time upon the sureties showing their insufficiency, and not justifying. In this case, it is manifest that the plaintiff could never hold the sheriff as bail, so long as they voluntarily adjourned the justification. If this be so, is it possible that he should have no liability as bail to plaintiff, and yet have power as bail to arrest defendant, who is plaintiff here ?

All this implies that the sheriff must take the trouble to keep himself informed of the condition of the proceeding for justification. ' This is necessarily his duty. If he voluntarily acts in the capacity of bail, for the purpose of arresting a man, necessarily, he must show that he is bail. It is his personal and direct interest to do so, and the law has given him specific power to become a party to the proceeding; for he may himself give notice of justification, and if the sureties do not appear and do not justify, he may at once arrest the defendant.

The answer in this case makes the issue, in one form at least, on which the rights of the parties turn. It alleges that the “ said bail neglected to justify as by law required.” There was no such neglect. The facts speak to the contrary.

With these results, it must be held that the notice given by the sheriff’s deputy to the defendant’s, now plaintiff’s attorneys, “that I shall expect the undertaking upon arrest, in the above entitled action, approved of at once, either by the judge on justification or by the plaintiff’s attorney,” had no effect upon the plaintiff’s rights. It did not increase the sheriff’s power and make him bail and authorized to surrender. A failure to answer it did not make it the more efficient. It is not necessary to decide that it could, not be evidence for some purposes, in a supposable condition of affairs.

. When it was admitted in testimony, the facts that appeared in evidence in regard to the reply made by this plaintiff’s attorney, required a submission to the jury whether as matter of fact- that reply reached the deputy who signed the notice. That reply would have informed the deputy that the plaintiff’s attorneys, in Leitch against the present plaintiff, had made a stipulation adjourning indefinitely the notice of justification of the sureties, and therefore the sureties had not made default in justifying. The stipulation was in form a consent that the defendant have five days after the decision of the motion to vacate the order of arrest, within which time to serve notice of his justification of his bail herein.

This reply was not of the kind of notices prescribed by law which must be served either upon the sheriff personally or at the office designated by the sheriff, under the statute. It referred to the personal and private relation of the sheriff to the then defendant. Whatever benefit the sheriff might claim from the notice signed by his agent, the dpputy, he must claim subject to the answer made to his agent. There were facts tending to show that the answer reached the agent, and, at least, that was for the jury to pass upon.

I therefore think that the jury should not have been directed to find for the defendant upon the trial in this action, and that, as the case stood, the damages of the plaintiff should have been assessed.

Judgment reversed and new trial ordered, with costs of the appeal to the appellant- to abide event.

Speir and Freedman, JJ., concurred.  