BAIL, practice, contracts. By bail is understood sureties, given according to law, to insure the appearance of a party in court. The persons who become surety are called bail. Sometimes the term is applied, with a want of exactness, to the security given by a defendant, in order to obtain a stay of execution, after judgment, in civil cases., Bail is either civil or criminal.
2.- 1. Civil bail is that which is entered in civil cases, and is common or special bail below or bail above.
3. Common bail is a formal entry of fictitious sureties in the proper office of the court, which is called filing. common bail to the action. It is in the same form as special bail, but differs from it in this, that the sureties are merely fictitious, as John Doe and Richard Roe: it has, consequently, none of, the incidents of special bail. It is allowed to the defendant only when he has been discharged from arrest without bail, and it is necessary in such cases to perfect the appearance of the defendant. Steph. Pl. 56, 7; Grah. Pr. 155; Highm. on Bail 13.
4. Special bail is an undertaking by one or more persons for another, before some officer or court properly authorized for that purpose, that he shall appear at a certain time and place, to answer a certain charge to be exhibited against him. The essential qualification to enable a person to become bail, are that he must be, 1. a freeholder or housekeeper; 2. liable to the ordinary process of the court 3. capable of entering into a contract; and 4. able to pay the amount for which he becomes responsible.
1. He must be a freeholder or housekeeper. (q. v.) 2 Chit. R. 96; 5 Taunt. 174; Lofft, 148 3 Petersd. Ab. 104.
2. He must be subject to the ordinary process of the court; and a person privileged from arrest, either permanently or temporarily, will not be taken. 4 Taunt. 249; 1 D. & R. 127; 2 Marsh. 232.
3. He must be competent to enter into a contract; a feme covert, an infant, or a person non compos mentis, cannot therefore become bail.
4. He must be able to pay the amount for which he becomes responsible. But it is immaterial whether his property consists of real or personal estate, provided it be his own, in his own right; 3 Peterd. Ab. 196; 2 Chit. Rep. 97; 11 Price, 158; and be liable to the ordinary process of the law; 4 Burr. 2526; though this rule is not invariably adhered to, for when part of the property consisted of a ship, shortly expected, bail was permitted to justify in respect of such property. 1 Chit. R. 286, n. As to the persons who cannot be received because they are not responsible, see 1 Chit. R. 9, 116; 2 Chit. R. 77, 8; Lofft, 72, 184; 3 Petersd. Ab. 112; 1 Chit. R. 309, n.
5. Bail below. This is bail given to the sheriff in civil cases, when the defendant is arrested on bailable process; which is done by giving him a bail bond; it is so called to distinguish it from bail above. (q. v.) The sheriff is bound to admit a man to bail, provided good and sufficient sureties be tendered, but not otherwise. Stat. 23 H. VI. C. 9, A. D. 1444; 4 Anne, c. 16, §20; B. N. P. 224; 2 Term Rep., 560. The sheriff, is not, however, bound-to demand bail, and may, at his risk, permit the defendant to be at liberty, provided he will appear, that is, enter bail above, or surrender himself in proper time. 1 Sell. Pr. 126, et seq. The undertaking of bail below is, that the defendant will appear or put in bail to the action on the return day of the writ.
6. Bail above, is putting in bail to the action, which is an appearance of the defendant. Bail above are bound either to satisfy the plaintiff his debt and costs, or to surrender the defendant into custody, provided judgment should be against him and he should fail to do so. Sell. Pr. 137.
7. It is a general rule that the defendant having been held to bail, in civil cases, cannot be held a second time for the same cause of action. Tidd' s Pr. 184 Grah. Pr. 98; Troub. & Hal. 44; 1 Yeates, 206 8 Ves. Jur. 594. See Auter action Pendent; Lis pendens.
8. - 2. Bail in criminal cases is defined to be a delivery or bailment of a person to sureties, upon their giving, together with himself, sufficient security for his appearance, he being supposed to be in their friendly custody, instead of going to prison.
9. The Constitution of the United States directs that "excessive bail shall not be required." Amend. art. 8.
10. By the acts of congress of September, 24, 1789, s. 33, and March 2, 1793, s. 4, authority is given to take bail for any crime or offence against the United States, except where the punishment is death, to any justice or judge of the United States, or to any chancellor, judge of the supreme or superior court, or first judge of any court of common pleas, or mayor of any city of any state, or to any justice of the peace or other magistrate of any state, where the offender may be found the recognizance tal,-en by any of the persons authorized, is to be returned to the court having cognizance of the offence.
11. When the punishment by the laws of the United States is death, bail can be taken only by the supreme or circuit court, or by a judge of the district court of the United States. If the person committed by a justice of the supreme court, or by the judge of a district court, for an offence not punishable with death, shall, after commitment, offer bail, any judge of the supreme or superior court of law, of any state, (there being no judge of the United States in the district to take such bail,) way admit such person to bail.
12. Justices of the peace have in general power to take bail of persons accused; and, when they have such authority they are required to take such bail There are many cases, however, under the laws of the several states, as well as under the laws of the United States,, as above mentioned, where justices of the peace cannot take bail, but must commit; and, if the accused offers bail, it must be taken by a judge or other,, officer lawfully authorized.
13. In Pennsylvania, for example, in cases of murder, or when the defendant is charged with the stealing of any horse, mare, or gelding, on the direct testimony of one witness; or shall be taken having possession of such horse, mare, or gelding, a justice of the peace cannot admit the party to bail. 1 Smith's L. of Pa. 581.
14. In all cases where the party is admitted to bail, the recognizance is to be returned to the court having jurisdict on of the offence charged. Vide Act of God. Arrest; Auter action pendent; Deat Lis pendens.
BAIL BOND, practice, contracts. A specialty by which the defendant and other persons, usually not less than two, though the sheriff may take only one, become bound to the sheriff in a penalty equal to that for which bail is demanded, conditioned for the due appearance of such defendant to the legal process therein described, and by which the sheriff has been commanded to arrest him. It is only where the defendant is arrested or in the custody of the sheriff, under other than final process, that the sheriff can take such bond. On this bond being tendered to him, which he is compelled to take if the sureties are good, he must discharge the defendant. Stat. 23 H. VI. c. 9.
2. With some exceptions, as for example, where the defendant surrenders; 5 T. R. 754; 7 T. R. 123; 1 East, 387; 1 Bos. & Pull. 326; nothing can be a performance of the condition of the bail bond, but putting in bail to the action. 5 Burr. 2683.
3. The plaintiff has a right to demand from the sheriff an assignment of such bond, so that he may sue it for his own benefit. 4 Ann. c. 16, §20; Wats. on Sheriff, 99; 1 Sell. Pr. 126, 174. For the general requisites of a bail bond, see 1 T. R. 422; 2 T. R. 569 15 East. 320; 2 Wils. 69; 6 T. R. 702; 9 East, 55; . D. & R. 215; 4 M. & S. 338; 1 Moore, R. 514; 6 Moore, R. 264 East, 568; Hurls. on Bonds, 56; U. S. Dig. Bail V.
BAIL PIECE. A certificate given by a judge or the clerk of the court, or other person authorized to keep the record, in which it is certified that A B, the bail, became bail, for C D, the defendant, in a certain sum, and in a particular case. It was the practice formerly, to write these certificates upon small pieces of parchment, in the following form: (See 3 Bl. Com. Appendix.)
In the Court of ______________, of the Term of ________, in the year of our Lord, ____________, ________________City and County of ________________, ss. Theunis Thew is delivered to bail upon the taking of his body, to Jacobus Vanzant, of the city of_________________, merchant, and to John Doe, of the same city, yeoman. SMITH, JR. At the suit of Attorney for Deft. PHILIP CARSWELL. Taken and acknowledged the ____ day of _______, A. D. _____, before me. D. H.
2. As the bail is supposed to have the custody of the defendant, when he is armed with this process, he may arrest the latter, though he is out of the jurisdiction of the court in which he became bail, and even in a different state. 1 Baldw. 578; 3 Com. 84, 421; 2 Yeates, 263 8 pick. 138; 7 John. 145; 3 Day, 485. The bail may take him even while attending court as a suitor, or any time, even on Sunday. 4 Yeates, 123; 4 Conn. 170. He may break even an outer door to seize him; and command the assistance of the sheriff or other officers; 8 Pick. 138; and depute his power to others.. 1 John. Cas. 413; 8 Pick. 140. See 1 Serg. & R. 311.
BAILABLE ACTION. One in which the defendant is entitled to be discharged from arrest, only upon giving bail to answer.
BAILABLE PROCESS. Is that process by which an officer is required to arrest a person, and afterwards to take bail for his appearance. A capias ad respondendum is bailable, but a capias ad satisfaciendum is not.
BAILEE, contracts. One to whom goods are bailed.
2. His duties are to act in good faith he is bound to use extraordinary diligence in those contracts or bailments, where he alone receives the benefit, as in loans; he must observe ordinary diligence of those bailments, which are beneficial to both parties, as hiring; and he will be responsible for gross negligence in those bailments which are only for the benefit of the bailor, is deposit and mandate. Story's Bailm. §17, 18, 19. He is bound to return the property as soon as the purpose for which it was bailed shall have been accomplished.
3. He has generally a right to retain and use the thing bailed, according to the contract, until the object of the bailment shall have been accomplished.
4. A bailee with a mere naked authority, having a right to remuneration for his trouble, but coupled with no other interest, may support trespass for any injury, amounting to a trespass, done while he was in the actual possession of the thing. 4 Bouv. Inst. n. 3608.


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