Bail

practice, contracts. Bail is civil or criminal; these will be separately considered.

1.

Civil bail is that which is entered in civil cases, and is common or special bail. 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 only allowed to the defendant when he has been discharged from arrest without bail, after the return day of the writ, and it is necessary in such case to perfect the appearance of the defendant.

Steph. Pl. 56, 7; Grah. Pr. 155; Highm. on Bail, 13.

Special bail is an undertaking by one or more persons for another, before some officer or court properly authorised for that purpose, that he shall 4ppcar at a certain time and place to answer a certain charge to be exhibited against him. ‘The person who encalled the bails The essential qualifications 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 Petersd. Ab. 196; 2 Chit. Rep. 97; 11 Price, 158; and it 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, sce 1 Chit. R. 9, 116; 2 Chit. R. TT, 8; Lofft, 72, 184; 3 Petersd.

Ab. 112; 1 Chit. R. 309, n.—2.

Bail in criminal cases is defined to be a delivery or bailment of a person to his suretics, 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. The constitution of the United States directs that ‘ excessive bail shall not be required.” congress of Scptember 24, 1789, s.

33, and March 2, 1793, s.

4, authority is given to ‘take bail tor 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 taken by any of the. persons authorised, is to be returned to the court of the United States having cognizance of the offence. 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 supreme court, or a judge of the district court of the United States. If the person committed by a justice of the supreme court, or by a judge of the district court, for an offence not punishable with death, shall, after commitment procure 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,) may admit such person to bail. 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, when 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 authorised. In Pennsylvania, for example, in cases of murder, or when the defendant is charged with stealing of any horse, taken having possession of such’ horse, mare or gelding, the justice of the peace cannot adinit the party to bail.

1 Smuith’s L. of Pa. 581.

In all cases where the party is admitted to bail, the recognizance 18 to be returned to the court having jurisdiction of the oflence charged.