BAIL, in law, (from the Fr. bailer, to deliver), • signifies the security given for the defendant's appear ance in a process.
Bail is given both in civil and in criminal actions. In civil cases, bail is either common or special. Com mon bail is taken when the defendant has been served with a writ of capias, by the sheriff or his officer, and with notice to appear by his attorney in court, to defend the action. if the defendant thinks proper to appear upon this notice, his appearance is recorded, and he puts in sureties for his future attendance and obedience. These sureties are called common bail, being the same two imaginary persons, John Doe, and Richard Roe, that were pledges for the plaintiff's prosecution. And if the defendant does not appear ' upon the return of the writ, or within a short period after, the plaintiff may enter appearance for him, and file common bail in his name, as if the defendant had done so himself.
Common bail is taken only in actions of small con cernment. But in causes of greater weight, such as actions upon bond or specialty, &c. where the plain tiff makes affidavit, or asserts upon oath, that the cause of action amounts to A' 10 or upwards, the de fendant must put in substantial sureties for his ap pearance, which is called special bail. And in such cases it is required by statute 13 Car. II. st. 2. c. 2, that the true cause of action should be expressed in the body of the writ or process.
Upon the return of the writ, or within four days after, the defendant must appear, according to the exigency of the writ. This is done by putting in and justifying bail to the action; which is commonly called putting in bail above. If this appearance be not made, and the bail taken by the sheriff below are responsible persons, the plaintiff may then take from the sheriff an assignment of the bail-bond, and bring an action against the sheriff's bail. And if the bail accepted by the sheriff be insolvent persons, the plaintiff may have recourse against the sheriff him self.
The bail above, or bail to the action, must be put in either in open court, or before one of the judges of that court ; or, if in the country, before a com missioner appointed for that purpose, and transmitted to the court. The bail, or sureties, to the number of two, at least, must enter into a recognizance be fore the judge or commissioner, whereby they jointly and severally undertake, that if the defendant be con demned in the action, he shall pay the costs and con demnation, or render himself a prisoner, or that he will pay it for him : which recognizance is transmit ted to the court in a slip of parchment, entitled a bail-piece. And the bail, if required, must justify themselves in court, or before the commissioner in the country, by swearing that they are housekeepers, and each of them worth double the sum for which they are bail, after paying all their debts. This practice
is in some degree analagous to the stipulatio or satis datio of the Roman law. Inst. 1. 4. t. 11. ff. 1. 2.
t. 8.
Bail, in criminal cases, is taken in most offences inferring an inferior degree of guilt ; but not in felo nies, and other capital crimes, because, in these cases, no bail could be a security equivalent to the actual custody of the offender's person. Both by the com mon and statutory laws, it is an offence against the liberty of the subject, for any magistrate to refuse or delay to bail any person bailable ; and it is expressly declared, by statute 1 W. & M. st. 2. c. 1, that exces sive bail ought not to be required : but it must be left to the courts to determine, according to the cir cumstances of the case, what bail shall be called ex cessive. Bail may be taken either in court, or, in some particular cases, by the sheriff, coroner, or other magistrate, but most frequently by the justices of the peace.
Bail can be taken only where the imprisonment is for safe custody, before conviction, and not from pri soners already convicted. By the old common law, all felonies were bailable, till murder was excepted by ' statute ; so that persons might be admitted to bail, before conviction, almost in every case. But the power of bailing in treason, and in divers instances of felony, has been taken away by sundry statutes.
The offences not bailable, according to Sir Wil liam Blackstone, arc : 1. Treason ; 2. Murder ; 3. Manslaughter, if the prisoner be clearly the slayer.
4. Persons committed for felony, who have broken prison ; 5. Outlawed persons ; 6. Such as have ab jured the realm ; 7. Approvers, and persons by them accused ; 8. Persons taken with the mainour, or in the fact of felony ; 9. Persons charged with arson ; 10. Excommunicated persons, taken by writ de es communicato capiendo. The following are of a du bious nature, and it seems to be left to the discretion of the justices, whether they are bailable or not : 1. Thieves openly defamed and known ; 2. Persons charged with other felonies, not being of good fame; 3. Accessaries to felony, that labour under the same want of reputation. The following must be bailed upon offering sufficient surety : 1. Persons of good fame, charged with a bare suspicion of manslaughter, or other inferior homicide • 2. Such person, charged with petit larceny, or any felony not before specified; or, 3. With being accessary to any felony. It is agreed, however, that the court of King's Bench, cr any judge of that court in time of vacation, may bail for any crime whatsoever, whether treason, murder, or any other offence, according to the circumstances of the case. Sec Blackst. Comment. Jacob's Law Diet. (z)