Herman v. Aaronson , 34 How. Pr. 272 ( 1867 )

Van Vorst, J.

I am satisfied that this motion cannot be granted. Section 199 of the Code provides, that, if money be deposited as provided in the last two sections (197 and 198), bail may be given and justified upon notice as prescribed in section 193, any time before judgment; and thereupon the judge before whom the justification is had shall direct, in the order of aUoioance, that the money deposited be refunded by the sheriff to the defendant. No application for the refunding of the money can be made until the bail has actually justified, and under notice of not less than five nor more than ten days. It does not appear that any notice of justification has been served on the other side, or that the bail have justified. The right to substitute an undertaking, with sureties, in the place of the money deposited, does not depend upon the favor of the court. It is given by the express provisions of the Code. The party should give bail to the sheriff, just as he would in the first instance, if no deposit had been made. The plaintiff should have an opportunity to except to the sureties, and he has ten days in which to do this, after receiving from the sheriff a copy of the undertaking.

After the justification of the sureties, the application for the deposit may be made.

In addition to this, there is no provision of law authorizing the money to be paid to any person other than the defendant himself. The application in this case is, that the money be refunded, not to defendant, but to J. Aaronson, who, it is claimed, deposited the same with the sheriff, to procure the defendant’s discharge from arrest. This the court is not authorized to do. There is a per curiam decision in Nunn agt. Powell (1 Smith’s Reports, 13), seemingly to the contrary; but this was in a contest between the depositor, a third party, and the defendant, after special bail had been perfected, there being no other claimants.

In Eddsten agt. Adams (2 Moore, 610), it was held, that the money should be refunded to the defendant. In the latter case, the money had been deposited by a friend of the defendant, and was claimed by the assignees of the defendant, who had become bankrupt. Burroughs, Justice, said: “The sum in question must be considered in custodia legis, and the court, by statute, are empowered to refund it to the defendant alone.” These cases arose under the statute (43 G. III, ch. 44), which contains provisions on the subject, in many respects similar to the sections of the Code under consideration.

In Salter agt. Weiner (6 Abb. 191), it was held, that the money, by being deposited, became the property of the defendant. There is good reason for- such opinion, as the money is substituted for the person of the defendant who is under arrest. It is practically so, at least until bail is put in and justified, and it may be taken and applied to the satisfaction of the judgment against defendant, when entered. (§ 200).^* In the event that there were no conflicting claims made to the money by the defendant, or others, the court could doubtless, at a proper time, make an order to pay the deposit to a third party, who had advanced it for the benefit of the defendant, on his arrest. (Douglass agt. Stanbrough, 3 Adol. & Ellis, 316; Buell agt. Turner, 1 Mee. & W. 47.)

The case before me does not show a state of facts which would at present authorize the refunding of the money to any person.

The other objections raised by plaintiff, that the motion is too late, on the ground that judgment has been already ordered in the action for the. plaintiff’s claim, although the record is not yet actually filed, and that the moneys have been attached as the defendant’s property, are not necessary to be considered in the view that I have taken of the qeestion.

Motion denied.

* Note. In Voorhies' edition of the Code, in a note to section 200, p. 384, “It is said, that this decision was reversed on appeal.” But such reversal, if made, does not affect the above authority, as the motion in this case was denied, as it appears, on. the ground that it was made before the bail had justified.—Rep.