639. If the bail be disallowed, the defendant must

be detained in custody until other bail be put in and

justify.

ARTICLE III.

BAIL, UPON AN INDICTMENT BEFORE CONVICTION.

SECTION 640. In misdemeanor, officer to take defendant before a magistrate.
641. In felony, to deliver him into custody.
642. Taking bail, when offence is bailable.
643. Bail, how put in. Form of undertaking.

644. Sections 631 to 635, applicable to qualifications of bail, to putting
in and justifying bail, and to incidental proceedings.

The provisions of this chapter need no other explanation than what is furnished by the sections themselves. They are in harmony with the last two chapters, so far as the principles contained in them are concerned, and in their details afford, it is believed, an ample guarantee, with proper vigilance on the part of the public officers, for the obtaining of sufficient bail, without imposing any undue hardship on the defendant.

§ 640. When the offence charged in the indictment is a misdemeanor, the officer serving the bench-warrant, must, if required, take the defendant before a magistrate in the county in which it is issued, or in which he is arrested, for the purpose of giving bail as prescribed in sections 319 and 322.

§ 641. If the offence charged in the indictment be a felony, the officer arresting the defendant must deliver him into custody, according to the command of the bench-warrant, as prescribed in section 318.

§ 642. When the defendant is so delivered into custody, if the felony charged be bailable, and the amount

of bail have been fixed by the court, as provided in section 320, bail may be taken by the court in which the indictment was found, or to which it is sent or removed, or by any magistrate in the county having authority to admit a defendant to bail, upon being held to answer before indictment, as provided in sections 618 and 619.

§ 643. The bail must be put in, by a written undertaking, executed by two sufficient sureties, with or without the defendant, in the discretion of the court or magistrate,) and acknowledged before the court or magistrate, in substantially the following form:

of

"An indictment having been found on the

day

1850, in the court of sessions of the county of Albany, [or as the case may be,] charging A. B. with the crime of, [designating it generally,] and he having been duly admitted to bail in the sum of dollars:

"We, C. D., of [stating his place of residence and occupation,] and E. F., of [stating his place of residence and occupation,] hereby undertake, that the above named A. B. shall appear and answer the indictment above mentioned, in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the court: and if convicted, shall appear for judgment, and render himself in execution thereof; or if he fail to perform either of these conditions, that we will pay to the people of the state of New-York, the sum of dollars," [inserting the sum in which the

defendant is admitted to bail.]

§644. The provisions contained in sections 631 to 639, both inclusive, apply to the qualifications of the bail, and to all the proceedings respecting the putting in and justifying of bail, and incidental thereto.

ARTICLE IV.

BAIL UPON AN APPEAL.

SECTION 645. Who may admit to bail.

646. Notice of the application, when required.
647. Qualifications of bail, and how put in.

$645. In the cases in which the defendant may be admitted to bail upon an appeal, as provided in section 617, the order admitting him to bail may be made, either by the court from which the appeal is taken, or the presiding judge thereof, or by the appellate court, or a judge thereof, or by a judge of the supreme court.

§ 646. When the admission to bail is a matter of discretion, the court or officer by whom it may be ordered, may require such notice of the application therefor, as he deems reasonable, to be given to the district attorney of the county in which the verdict or judgment was originally rendered.

§ 647. The bail must possess the qualifications, and must be put in in all respects, in the manner prescribed by sections 631 to 639, both inclusive; except that the undertaking of the bail must be to the effect that the defendant will, in all respects, abide the orders and judgment of the appellate court upon the appeal.

ARTICLE V.

DEPOSITE INSTEAD OF BAIL.

SECTION 648. Deposite, when and how made.

649. May be made after bail given, and before forfeiture; and in sucă case bail discharged.

650. Bail may be given after deposite; and in such case money deposited to be refunded.

651. Deposit to be applied to payment of judgment of fine, and surplus to be refunded.

The permission to deposit money, instead of giving bail, was introduced by the Commissioners into the civil practice, because, while it afforded the best security, it relieved the defendant from great embarrassment in procuring bail. If he were a stranger, he must necessarily remain in prison, or indemnify, or, what was more frequently the case, hire a private party to become his bail. He was thus, in order to escape imprisonment, subjected on the one hand to the hazard of losing his money, and on the other to the extortion of those who might be disposed to take an undue advantage of his situa tion. If it was just, therefore, to relieve him from this embarrassment in a civil case, it is more just to do so in a criminal one where the difficulties of his position can otherwise be less easily avoided.

In carrying out this principle, the provisions of this chapter have been substantially taken from the Amended Code, sec. 197-200.

§ 648. The defendant, at any time after an order admitting him to bail, instead of giving bail, may deposit with the clerk of the county in which he is held to answer, the sum mentioned in the order; and upon delivering to the officer in whose custody he is, a certificate of the deposite, he must be discharged from custody.

§ 649. If the defendant have given bail, he may, at any time before the forfeiture of their undertaking, in

like manner deposit the sum mentioned in the undertaking; and upon the deposite being made, the bail is exonerated.

§ 650. If money be deposited, as provided in the last section, bail may be given, in the same manner as if it had been originally given upon the order for admission to bail, at any time before the forfeiture of the deposite. The court or magistrate before whom the bail is taken, must thereupon direct, in the order of allowance, that the money deposited be refunded by the county clerk to the defendant; and it must be refunded accordingly.

§ 651. When money has been deposited, if it remain on deposite at the time of a judgment for the payment of a fine, the county treasurer must, under direction of the court, apply the money in satisfaction thereof, and after satisfying the fine, must refund the surplus, if any, to the defendant.

ARTICLE VI.

SURRENDER OF THE DEFENDANT.

SECTION 652. Surrender, by whom, when, and how made.

653. By whom, when and where, defendant may be arrested for the purpose of a surrender.

654. On surrender before forfeiture, money deposited to be refunded. Order therefor, how obtained.

The provisions of this chapter sufficiently explain themselves. They are substantially taken from the Amended Code sec. 188, 189.

§ 652. At any time before the forfeiture of their undertaking, the bail may surrender the defendant in