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
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
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
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 Smiths 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.
Source: Bouviers Law Dictionary 1856 Edition
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