Bridgewater Paint Manufacturing Co. v. Messmore

Roosevelt, Justice.

The language of the Code, as well as the authorities, are clear on this point, that after the defendant has put in and justified bail, he cannot move for a discharge from the arrest. Whatever is said of the reasoning, the rule is settled. It applies, however, only to those stages of the action which precede the judgment. The object of the arrest, as well as of the bail, is to secure the defendant’s appearance whenever called for, at and previous to the judgment, and on the service of process to enforce it. (Code, § 187.)

That being accomplished, the bail is functus officio, and the estoppel created by giving it, ceases. Should an execution be taken out against the defendant’s person, he may move to set it aside, as not warranted by the facts; and it would be no answer to his application to say that he had allowed himself, on the same facts, to be arrested by preliminary process. A quiet submission to one wrong may provoke, but does not justify another. Estoppels are not extended by implication. They are confined to the precise matter embraced in them. Although, therefore, the defendant cannot be relieved from an arrest which he has acquiesced in, he may be from an execution, as to the form of which, except incidentally, he has never been heard.

The present motion cannot be granted, but the denial is without prejudice to any motion which may hereafter he made to stay or discharge an execution against the person of the defendant.