BAIL, BAIL BOND, BAIL PIECE, BAILABLE ACTION...
2.7.17
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.
