while an appeal is pending, he will not thereby be discharged from liability. The amount of such liability will be increased, to the extent of the interest on the original judgment, and the costs of appeal. Appleby v. Robinson, 44 Barb. 316. But the entire liability cannot exceed the sum specified in the undertaking of bail. Ib. b. Liability on an escape. The Code in section 201 provides, that if a defendant escape after being arrested on an order of arrest, the sheriff shall be liable as bail. The common law gave an action against the sheriff for an escape, which action is recognized by the Code in section 94. These two remedies are distinct, and differ both in the mode of procedure and in the measure of damages under each. The plaintiff has an election which of these remedies he will adopt, and may manifest his election in his pleadings. If the plaintiff proceed against the sheriff on his liability as bail, under section 201, the amount of damages recoverable will be measured by the judgment in the original action. No defense setting up the insolvency of his principal can avail the sheriff in an action against him as bail. Metcalf v. Stryker, 31 N. Y. (4 Tiff.) 255; Censel v. Lynch, 44 id. (5 Hand) 162; Smith v. Knapp, 30 id. (3 Tiff.) 581; Levy v. Nicholas, 19 Abb. 282; S. C., 1 Rob. 614. But in a common-law action for an escape, the measure of damages would be the loss actually sustained by the plaintiff, by reason of such escape, and the solvency of the defendant might be shown as a bar to the action, or in mitigation of damages. Ib. c. Liability on a rescue. The sheriff is responsible to the plaintiff for the safe keeping of a defendant in custody under an order of arrest, and he is liable as bail, as well where the defendant has been rescued as where he has escaped through the negligence of the sheriff. Code, § 201. In the absence of any reported decisions on this point, it may be a question how far the courts would enforce this liability where the rescue could not reasonably have been anticipated. See Howden v. Standish, 6 Mann., Grang. & Sc. 521. d. Recapture. As has been elsewhere stated, the sheriff is authorized to recapture the defendant, after a negligent escape, or a rescue, at any time, or in any place. Rigeway's Case, 3 Coke, 52; Anonymous, 6 Mod. 231; Jones v. Pope, 1 Saund. 35; Nichols v. Ingersoll, 7 Johns. 145; Lockwood v. Mercereau, 6 Abb. 206. So the sheriff may recapture the defendant after a Proceedings on judgment against sheriff-Bail liable to sheriff. voluntary escape from custody, on an order of arrest, at any time before the return day of the order. Clark v. Cleveland, 6 Hill, 349; Arnold v. Steeves, 10 Wend. 514. On the recapture of a defendant the sheriff may, within the prescribed time, surrender him in his own exoneration. Buckman v. Carnley, 9 How. 180; Seaver v. Genner, 10 Abb. 256. And where a defendant escapes from the jail limits, it will be a good defense in an action against the sheriff for such escape, to show that the prisoner was recaptured before the commencement of the action. 2 R. S. 435 (453) § 48. Section 11. Proceedings on judgment against sheriff. a. In general. If a judgment be recovered against the sheriff, upon his liability as bail, and an execution thereon be returned unsatisfied, in whole or in part, the same proceedings may be had on the official bond of the sheriff, to collect the deficiency, as in other cases of delinquency. Code, § 202, People ex rel. Metcalf v. Dikeman, 4 Keyes, 93. See Actions by and against Sheriffs. b. Bail liable to sheriff. It is provided by section 203 of the Code, that the bail taken upon arrest, shall, unless they justify, or other bail be given or justified, be liable to the sheriff, by action, for the damages which he may sustain by reason of such omission. This section of the Code gives the sheriff no right of action against the bail until he has sustained damage from the liability as bail which the law imposes upon him. Under the old system, the bail were liable to the sheriff if they failed to put in bail in the action. It was a contract liability. Under the present system, the liability is for the damages which the sheriff has sustained by reason of the omission or neglect of the bail to justify. Clapp v. Schutt, 29 How. 255; S. C., 44 Barb. 9; 19 Abb. 121; 44 N. Y. (5 Hand) 104. But where the liability of the bail was unlawfully created, as on a bond taken by the sheriff from the defendant and a surety, for the purpose of securing a release from an illegal arrest, the obligation may be avoided by the surety in a several action against him on the ground of duress. Thompson v. Lockwood, 15 Johns. 256. See Webber's Executors v. Blunt, 19 Wend. 188. See Actions by Sheriffs. Section 12. Vacating order or reducing bail. a. At what time. By section 204 of the Code it is provided that a defendant may apply, on motion, to vacate an order of arrest, or to reduce the amount of bail, at any time before judgment. This section of the Code must be construed in connection Vacating order or reducing bail-General practice on motion. with section 183, which provides that an order of arrest shall be of no avail, and shall be vacated, or set aside on motion, unless the same is served upon the defendant as provided by law, before the docketing of any judgment in the action, and the defendant shall have twenty days after the service of the order of arrest in which to answer the complaint in the action, and to move to vacate the order of arrest, or to reduce the amount of bail. But Construed together, the effect of the two sections is to give the defendant until the rendition of a judgment in which to move to vacate the order of arrest, where such orders were served more than twenty days prior to the rendition of such judgment. where the arrest was made within the twenty days immediately preceeding judgment, the defendant is allowed to move to vacate the order although after judgment rendered, provided such motion is made within twenty days from the service of the order of arrest. Pelo v. Clukey, 36 How. 179. 179. Prior to the amendment of section 183 of the Code, in 1862, an arrest might be made in the same hour in which judgment was rendered, thus virtually rendering it impossible for the defendant to move to vacate the order, or to reduce the amount of bail, according to the intent of the statute. Barker v. Wheeler, 23 How. 193; S. C., 14 Abb. 170. The amendment gave the defendant, in all cases, twenty days in which to move to vacate the order, or to reduce the amount of bail. Pelo v. Clukey, 36 How. The amendment of section 204, in 1858, substituted the word "judgment" for "justification of bail," thus rendering of no present force or value numerous reported decisions rendered prior to such amendment. And by the term "judgment," as used in section 204, must be understood the final determination of the rights of the parties in the action, beyond which the court has no jurisdiction over the person of the parties, or of the subject-matter of the action. Mott v. Union Bank of City of New York, 38 N. Y. (11 Tiff.) 18; S. C., 35 How. 332; 4 Abb. N. S. 270; 4 Trans. App. 291. b. General practice on motion. The motion to vacate an order of arrest, or to reduce the amount of bail, may be made ex parte, and at chambers, if before the judge who granted the order. But, if made before another judge, the application must be to the court, and on eight days' notice to the plaintiff. Rogers v. McElhone, 20 How. 441; S. C., 12 Abb. 292; Cayuga Bank v. Motion on plaintiff's papers. Warfield, 13 How. 439; Dunaher v. Meyer, 1 Code R. 87; Code, §§ 324, 401, 402. In all the districts, a motion to vacate or modify a provisional remedy has preference over all other motions. Code, § 401, subd. 5. When the motion is upon notice, it must be made within the district in which the action is triable, or in the county adjoining that in which it is triable, except that where the action is triable in the first judicial district the motion must be made therein, and no motion upon notice can be made in the first judicial district in an action triable elsewhere. Code, $401. c. Motion on plaintiff's papers. The papers upon which a motion to vacate an order of arrest should be based depends mainly upon the cause of action in which the order was granted. Where the right to arrest is founded upon the nature of the action, the defendant will not be required to introduce affidavits to show that there is no cause of action, and to move to set aside the order before judgment; but he may, on the trial, contest the facts relied on as a ground of arrest, and if they are not proved at the trial, no execution can be issued against the person. Elwood v. Gardner, 10 Abb. N. S. 238; 45 N. Y. (6 Hand) 349; 5 Albany Law Journal, 307. But when the arrest is founded upon extrinsic facts, wholly independent of the cause of action, the defendant may contest the truth of the facts upon which the arrest was ordered, and if he satisfies the court by his own affidavit or otherwise, that there is no foundation for the arrest, he is entitled to his discharge. Geller v. Seixas, 4 Abb. 103; Royal Ins. Co. v. Noble, 5 Abb. N. S. 54; Corwin v. Freeland, 6 N. Y. (2 Seld.) 565; Merritt v. Heckscher, 50 Barb. 451; Swift v. Wylie, 5 Rob. 680; Cheney v. Garbutt, 5 How. 467; S. C., 1 Code R. N. S. 166; Brodsky v. Ihms, 16 Abb. 251; S. C., 25 How. 471; Baker v. Swackhamer, 5 id. 251; S. C., 3 Code R. 248; Nelson v. Blanchfield, 54 Barb. 630. The defendant may move to vacate the order solely on the ground that the affidavits on which the order was granted were defective or insufficient. In such case the only issue presented will be whether the affidavit authorized the granting of the order. Martin v. Vanderlip, 3 How. 265; S. C., 1 Code R. 41. But where the defendant bases his application on the insufficiency of the plaintiff's affidavit, the affidavit being uncontradicted, must be taken as true, but must be construed strictly against the plaintiff. Hathorn v. Hall, 4 Abb. 227; Lovell v. Martin, 21 How. 238; S. C., 12 Abb. Notice of motion to vacate an order of arrest. 178; Wolfe v. Brouwer, 5 Rob. 601; Union Bank v. Mott, 9 Abb. 106; S. C., 17 How. 353. Where a copy of the complaint has been served, which sets forth a cause of action on which no arrest could be had, joined with a cause of action on which an order of arrest might properly issue, the defendant may move to vacate the order of arrest on the complaint alone. McGovern v. Payn, 32 Barb. 83; Smith v. Knapp, 30 N. Y. (3 Tiff.) 581; Miller v. Scherder, 2 id. (2 Comst.) 262; Ely v. Steigler, 9 Abb. N. S. 35; Lambert v. Snow, 9 Abb. 91; S. C., 17 How. 517; 2 Hilt. 501; Brown v. Ashbough, 40 How.226. But the mere fact that the demand for judgment contains a prayer for relief inconsistent with the facts stated in the body of the complaint, will not, of itself, authorize an application for an order vacating an arrest. It is the facts stated that determine the character of the action, and not the demand for relief. Redfield v. Frear, 9 Abb. N. S. 449. Notice of Motion to Vacate an Order of Arrest. (Title of cause.) SIR: Please take notice that on an affidavit, of which the within is a copy (or, of which a copy is annexed), and on all the papers filed and served in this action, the undersigned will move the court at a special term to be held at 187, at day of 187 at on the day of o'clock in the forenoon, or as soon thereafter as counsel can be heard (or, will move before the Hon. a justice of this court, at his office, in the city of on the o'clock in the noon), to vacate the order of arrest in this action, upon the ground (state the ground of the motion), and for such other or further order as may be just, and for the costs of this motion. (Date.) (Signature.) (Address.) d. Affidavits on motion. If the motion be made upon affidavits on the part of the defendant, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the order of arrest was made. Code, § 205. But, unless the defendant bases his motion on affidavits, the plaintiff cannot introduce additional affidavits to sustain the arrest. Code, & 205; Martin v. Vanderlip, 3 How. 265; S. C., 1 Code R. 41. But where affidavits are introduced by the defendant, on a motion to vacate an order of arrest, the plaintiff may not only introduce other affidavits sustaining the allegations on which the order was |