Bradlev, J.:
The question is presented whether the undertaking taken by the plamtitt, as sheriff, m the action of Douglas v. Warren was colore officii, and void within the statute which provides that “ no sheriff or other officer shall take any bond, obligation or security, by colour of his office, in any other case or manner than such as are provided by law, and any such bond, obligation or security taken otherwise than as herein directed shall be void.” • (2 R. S., 286, § 59.) This undertaking was in the form prescribed by section 187 of the old Code, but was made after the Code of. Civil Procedure went into effect, by which the terms of the undertaking; required in a case like that in which this one was taken, was so changed as to. omit the provision that the arrested defendant should “ at all times render lumself amenable to the process of the court during the pendency of the action ” in which the order of arrest issued. (Sec. 575, sub. 8.) Those words were not properly embraced in the undertaking in question and if, in any view which can legitimately be taken of those words in such a case, they in terms impose any burthen upon the person arrested, for the protection of his sureties, not within the authorized provisions of the instrument, it was wholly void.; and can furnish no support for the relief of the plaintiff in this action. (Coole v. Freudenthal, 80 N. Y., 202; Toles v. Adee, 84 id., 222.) This undertaking contains the terms provided by the statute for it, and in such case if the additional words employed may 'be treated as surplusage merely, the instrument will not be void, and that depends upon the question whether any use, if valid, could be made of the extra provision in any event as against the principal named in it, or to charge his sureties to any extent otherwise than the omission of such provision would permit. The provision that the principal would “at all times render himself amenable” to the process of the court, as directed by the old Code, was what was required, as equitable bail, of a party taken in custody on writ of ne exeat. The legal and practical effect of this was, that the arrested defendant would render himself amendable to process to enforce performance of any decree that might be rendered against him. [204]*204(Gleason v. Bisby, Clarke, 557; Dunham v. Jackson, 1 Paige, 629 , Mitchell v. Bunch, 2 id., 606; McNamara v. Dwyer, 7 id., 239 ) It is difficult to see in this extra phrase any legitimate import, as applied to the action at law in which the undertaking was made, not embraced within the provisions required by the statute. (Code Civil Pro., § 575, sub. 3.) It was evidently inserted in the old Code in view of the purpose of the commissioners to abolish the writ of oie exeat, and in their expectation and belief that such would be the effect of the legislative adoption of their work, and that they therefore designed to make the provisions for arrest and bail applicable to actions for both legal and equitable relief. The weight of authority upon the conflict of decisions is that the writ was not abolished by that Code, and it may in that view be said that the particular provision in question, in its purpose and effect, was nugatory. It is not apparent, nor am I able to see, that the use of these unauthorized words of the undertaking can have any possible import in an action at law, other than such as would be furnished by their exclusion from the instrument. No requiremem; within the provisions of the undertaking, other than that arising out of the liability established by the judgment, seems to have been possible in the action in which it was taken. That was an action for the recovery of money only, and the order of arrest was supported by the charge of fraudulent appropriation of money by Warren, the defendant therein. The ynovision of the undertaking, that he would render himself amenable to such process as might be issued to enforce the judgment, was all that was applicable in that action, or which to any extent characterized the nature of the obligation assumed by the instrument executed by the sureties.
It would have been otherwise if it had contained the provision usually inserted in bonds on discharge from arrest on ne exeat, that the defendant would “ not depart from or leave this State, without the permission of the court,” but nothing in this undertaking imports any such obligation. It has been suggested that the failure of the defendant to obey a subpoena to appear as a witness in the action, might result in a breach of the terms of the undertaking, but the expression used in it has been one of practical use and construction in proceedings in courts of equity, and it has not been deemed applicable to any' such use or effectual for any such [205]*205purpose. It relates only to the process of the court to enforce some decree or judgment in the action, and not to any proceeding taken to compel the attendance of the defendant as a witness in it for the plaintiff.
The statute rendering void unauthorized securities taken by public officers is applied with much strictness. And in Barnard v. Viele (21 Wend., 88), Nelson, Ch. J., remarked that a bond was void, although the legal effect of that there in question, and that authorized, seemed to be substantially the same; but it will be observed that there the bond differed in its terms from that prescribed by law, while here t'he required terms are adopted, and the only question arises upon the effect of the additional provision inserted in the undertaking. It seems to add nothing to the statutory obligation assumed, and is therefore mere surplusage, and does not vitiate the legal quality of the instrument. The contention to the like effect in Cook v. Freudenthal (supra), was overcome by the fact that there was a possible contingency in an action of the character of that one, that an execution might issue against the body of the defendant upon the judgment, hence the unauthorized provision of the undertaking rendered it void, but there was no suggestion by the court in that case that its provision to the effect that the defendant would be amenable to the process of the court, added anything in terms to its effect, other than its relation to the enforcement of the judgment of the court. My conclusion is that the undertaking in qu tion was not taken colore officii, and that it was valid.
The proceedings which preceded and led to this action, so far as material, are that Alice Douglas brought an action against William T. Warren, in which an order of arrest was issued, and Warren was arrested by the plaintiff, then sheriff of Erie county, and the defendants made the undertaking before mentioned, which was received by the plaintiff, and Warren was discharged. This bail was excepted to, and they failed to justify. A judgment was recovered against Warren in that action. And an execution against his property having been returned unsatisfied, and one against his person returned not found, an action was brought by Douglas against this plaintiff, in which a recovery was had and sustained after a long litigation which is somewhat represented by [206]*206the report of it in 25 Hun, 262; reversed 88, N. Y., 611; 30 Hun, 619; affirmed 96 N. Y., 626. The liability of the plaintiff was as bail, which relation he assumed when the sureties in the undertaking failed to justify (Code Civil Pro. 587), and they became liable to him for all the damages he should sustain by reason of such omission. (Id., § 589.) The purpose of this action is to recover such damages.
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Bradlev, J.:
The question is presented whether the undertaking taken by the plamtitt, as sheriff, m the action of Douglas v. Warren was colore officii, and void within the statute which provides that “ no sheriff or other officer shall take any bond, obligation or security, by colour of his office, in any other case or manner than such as are provided by law, and any such bond, obligation or security taken otherwise than as herein directed shall be void.” • (2 R. S., 286, § 59.) This undertaking was in the form prescribed by section 187 of the old Code, but was made after the Code of. Civil Procedure went into effect, by which the terms of the undertaking; required in a case like that in which this one was taken, was so changed as to. omit the provision that the arrested defendant should “ at all times render lumself amenable to the process of the court during the pendency of the action ” in which the order of arrest issued. (Sec. 575, sub. 8.) Those words were not properly embraced in the undertaking in question and if, in any view which can legitimately be taken of those words in such a case, they in terms impose any burthen upon the person arrested, for the protection of his sureties, not within the authorized provisions of the instrument, it was wholly void.; and can furnish no support for the relief of the plaintiff in this action. (Coole v. Freudenthal, 80 N. Y., 202; Toles v. Adee, 84 id., 222.) This undertaking contains the terms provided by the statute for it, and in such case if the additional words employed may 'be treated as surplusage merely, the instrument will not be void, and that depends upon the question whether any use, if valid, could be made of the extra provision in any event as against the principal named in it, or to charge his sureties to any extent otherwise than the omission of such provision would permit. The provision that the principal would “at all times render himself amenable” to the process of the court, as directed by the old Code, was what was required, as equitable bail, of a party taken in custody on writ of ne exeat. The legal and practical effect of this was, that the arrested defendant would render himself amendable to process to enforce performance of any decree that might be rendered against him. [204]*204(Gleason v. Bisby, Clarke, 557; Dunham v. Jackson, 1 Paige, 629 , Mitchell v. Bunch, 2 id., 606; McNamara v. Dwyer, 7 id., 239 ) It is difficult to see in this extra phrase any legitimate import, as applied to the action at law in which the undertaking was made, not embraced within the provisions required by the statute. (Code Civil Pro., § 575, sub. 3.) It was evidently inserted in the old Code in view of the purpose of the commissioners to abolish the writ of oie exeat, and in their expectation and belief that such would be the effect of the legislative adoption of their work, and that they therefore designed to make the provisions for arrest and bail applicable to actions for both legal and equitable relief. The weight of authority upon the conflict of decisions is that the writ was not abolished by that Code, and it may in that view be said that the particular provision in question, in its purpose and effect, was nugatory. It is not apparent, nor am I able to see, that the use of these unauthorized words of the undertaking can have any possible import in an action at law, other than such as would be furnished by their exclusion from the instrument. No requiremem; within the provisions of the undertaking, other than that arising out of the liability established by the judgment, seems to have been possible in the action in which it was taken. That was an action for the recovery of money only, and the order of arrest was supported by the charge of fraudulent appropriation of money by Warren, the defendant therein. The ynovision of the undertaking, that he would render himself amenable to such process as might be issued to enforce the judgment, was all that was applicable in that action, or which to any extent characterized the nature of the obligation assumed by the instrument executed by the sureties.
It would have been otherwise if it had contained the provision usually inserted in bonds on discharge from arrest on ne exeat, that the defendant would “ not depart from or leave this State, without the permission of the court,” but nothing in this undertaking imports any such obligation. It has been suggested that the failure of the defendant to obey a subpoena to appear as a witness in the action, might result in a breach of the terms of the undertaking, but the expression used in it has been one of practical use and construction in proceedings in courts of equity, and it has not been deemed applicable to any' such use or effectual for any such [205]*205purpose. It relates only to the process of the court to enforce some decree or judgment in the action, and not to any proceeding taken to compel the attendance of the defendant as a witness in it for the plaintiff.
The statute rendering void unauthorized securities taken by public officers is applied with much strictness. And in Barnard v. Viele (21 Wend., 88), Nelson, Ch. J., remarked that a bond was void, although the legal effect of that there in question, and that authorized, seemed to be substantially the same; but it will be observed that there the bond differed in its terms from that prescribed by law, while here t'he required terms are adopted, and the only question arises upon the effect of the additional provision inserted in the undertaking. It seems to add nothing to the statutory obligation assumed, and is therefore mere surplusage, and does not vitiate the legal quality of the instrument. The contention to the like effect in Cook v. Freudenthal (supra), was overcome by the fact that there was a possible contingency in an action of the character of that one, that an execution might issue against the body of the defendant upon the judgment, hence the unauthorized provision of the undertaking rendered it void, but there was no suggestion by the court in that case that its provision to the effect that the defendant would be amenable to the process of the court, added anything in terms to its effect, other than its relation to the enforcement of the judgment of the court. My conclusion is that the undertaking in qu tion was not taken colore officii, and that it was valid.
The proceedings which preceded and led to this action, so far as material, are that Alice Douglas brought an action against William T. Warren, in which an order of arrest was issued, and Warren was arrested by the plaintiff, then sheriff of Erie county, and the defendants made the undertaking before mentioned, which was received by the plaintiff, and Warren was discharged. This bail was excepted to, and they failed to justify. A judgment was recovered against Warren in that action. And an execution against his property having been returned unsatisfied, and one against his person returned not found, an action was brought by Douglas against this plaintiff, in which a recovery was had and sustained after a long litigation which is somewhat represented by [206]*206the report of it in 25 Hun, 262; reversed 88, N. Y., 611; 30 Hun, 619; affirmed 96 N. Y., 626. The liability of the plaintiff was as bail, which relation he assumed when the sureties in the undertaking failed to justify (Code Civil Pro. 587), and they became liable to him for all the damages he should sustain by reason of such omission. (Id., § 589.) The purpose of this action is to recover such damages.
It is contended on the part of the defense that the liability of the plaintiff as bail was occasioned by his own fault or neglect to protect himself, which his duty to the defendants required him to do in their bebalf, and that for his failure to do so they were relieved from liability to him. It appears that the reason why Warren-was not found and taken on the execution issued against his person, was because he had been taken to the Inebriate Asylum,- at Binghamton, by virtue of an order to that effect made by the county judge of Erie county. That order seems to have been void, and was so treated by the trial court. The action against the plaintiff was commenced April 10, 1879, and on the fourteenth of that month the plaintiff, as such sheriff, caused the return of Warren into his custody, and might have retained him in his custody and exonoration have been obtained by the sheriff, as such bail, prior to April 30, 1879, as his time to answer the complaint did not until then expire. (Id;, §§ 591-595.) On the fifteenth April, and while Warren was in such custody, the defendants' sought to make a formal surrender of him to the sheriff, and if it was in their power to do so it would have been an effectual relief for them, but their relation as bail, by reason of their failure to justify, had terminated and did not exist at the time of such attempted surrender, and it was, therefore, ineffectual as such. (Clapp v. Schutt, 44 N. Y., 104.) The plaintiff did not continue the retention of-Warren in hi's custody, but on the twenty-fourth of .April he accepted an undertaking in behalf of the judgment debtor and discharged him, caused his rearrest on the twenty-eighth of the month by the coroner, and on the next day he was again set at liberty on giving, with sureties, another undertaking, both of which were in the form of that first before mentioned. This arrest was evidently caused with á view to the exoneration of the sheriff as bail, and an application was by him made to the court, and the order granting it was reversed. (Douglass v. Warren and Same v. Haberstro, 19 Hun, 1.) And after the [207]*207plaintiff’s term of office expired, and in February, 1880, be surrendered Warren to the sheriff, by whom he was taken into custody, and again moved for his exoneration as bail, and the order then granting his application was also reversed. (Douglass v. Haberstro, 21 Hun, 320; 82 N. Y., 572.) The opportunity of the plaintiff to obtain, as matter of right, his exoneration as bail, was lost by the discharge of Warren from custody after he was placed there in April, 1879. The taking of the undertakings thereafter received was without authority of law, and the discharge of the judgment debtor thereupon permitted, is treated as an escape, and of this the defendants complain, and allege such release from custody as matter of defense. It cannot well be claimed that the failure of the plaintiff to keep the judgment debtor in custody was caused by any bad'faith on the part of the plaintiff, or with any view to charge the defendants with liability. They denied to themselves the rights and privileges of bail when they refused or neglected to justify. The plaintiff owed to them good faith, hut no active duty to protect them against the consequences of such' omission on their part. It is not, therefore, a defense for them that he may, by a different course of proceeding than that taken by him, have protected himself and them against liability. When the defendants made the undertaking and he accepted it, the judgment debtor was entitled to his discharge from custody. (Code Civil Pro., § 573; Arteaga v. Conner, 88 N. Y., 403.) And it was only after he, by force of the statute, became bail that the sheriff was permitted to surrender or take him into custody. At the time he became such, the defendants ceased to have any rights or privileges as bail, and their liability became his indemnity for the damages that he might legitimately sustain as the consequence of the relation imposed upon him. The fact that the plaintiff misjudged or was illy advised of his legal rights, and therefore failed to observe and resort to the remedies which may have been available to relieve him from liability as bail, does not constitute a defense for the defendants without the support of had fajth on his part towards them, which does not appear to be a feature in the case: As the case is now viewed, the plaintiff was entitled to recover.
The amount of carnages was a question - of some controversy upon the evidence and in the contention of the parties. None of [208]*208the exceptions having relation to the measure and amount of the damages, or raising any other question on the trial, seem to have been well taken.
The judgment and order should be affirmed.
Smith, P. J., concurred; Haight, J., not sitting.