BAIL BOND. In Practice. A speci alty by which the defendant and other per sons become bound to the sheriff in a penal sum proportioned to the damages claimed in the action, and which is conditioned for the due appearance of such defendant to answer to the legal process therein described, and by which the sheriff has been commanded to arrest him.
The defendant usually binds himself as principal with two sureties; but sometimes the bail alone bind themselves as principals, and sometimes also one surety•is accepted by the sheriff. The bail bond may be said to stand in the place of the de fendant so far as the sheriff is concerned, and, if properly taken, furnishes the sheriff a complete answer to the requirement of the writ, directing him to take and produce the body of the defendant. A bail bond is given to the sheriff, and can be taken only where he has custody of the defendant on process other than final, and is thus distinguished from recognizance, which see.
The sheriff can take the bond only when be has custody of the defendant's body on process other than final.
2. When a bail bond, with sufficient secu rities and properly prepared, is tendered to the sheriff, he must take it and discharge the defendant. Stat. 23 Hen. VI. c. 10, 5.
The requisites of a bail bond are that it slionll be under seal, 1 Term, 418 ; 7 id. 109 ; 2 Hayw. N ). C. 16; 3 T. B. Monr. Ky. 80; 6 Rand. Va. 101; should be to the sheriff by the name of the office, 1 Term, 422; 4 M'Cord, So. C. 175 ; 1 Ill. 51 ; 4 Bibb, Ky. 505 ; 4 Gray, Mass. 300; conditioned in such manner as that performance is possible, 3 Lev. 74; 3 Campb. 181; 1 South. N. J. 319 ; for a proper amount, 2 Va. Cas. 334; 2 Penn. N. J. 707; for the defendant's appearance at the place and day named in the writ, 1 Term, 418; 1 Ala. 299; 4 Me. 10; 4 Halst. N. J. 97 ; 2 Munf. Va. 448 ; 2 Brev. So. C. 394 ; see BAIL, 1; and should describe the action in which the defendant is arrested with sufficient accu racy to distinguish it, Hard. Ky. 501; 10 Mass. 20; 5 id. 542; 9 Watts, Penn. 43; but need not disclose the nature of the suit. 6 Term, 702. The sureties must be two or more in number to relieve the sheriff, 2 Bingh. 227 ; 9 Mass. 482 ; 12 id. 129 ; 1 Wend. N. Y. 108 ; see 5 Rich. So. C. 347; and he may insist upon three, or even more, subject to statutory provisions on the subject, 5 Maule & S. 223 ; but the bond will be bind ing if only one be taken. 2 Mete. Mass.490 ; 8 Johns. N. Y. 358; 2 Ov. Tenn. 178; 2
Pick. Mass. 284.
3. Putting ire bail to the action, 5 Burr. 2683, and waiver of his right to such bail by the plaintiff, 5 Serg. & R. Penn. 419; 11 id. 9; 7 Ohio, 210 ; 4 Johns. N. Y. 185 ; 6 Rand. Va. 165 ; 2 Day, Conn. 199, or a surrender of the person of the defendant, constitute a per formance or excuse from theperformance of the condition of the bond, 5 Term, 754; 7 id. 123 ; 1 East, 387 ; 1 Bos. & P. 326; 1 Baldw. C. C. 148 ; 1 Johns. Cas. N. Y. 329, 334; 2 id. 403 ; 9 Serg. & R. Penn. 24; 14 Mass. 115; 2 Strobh. So. C. 439; 6 Ark. 219 ; see 4 Wash. C. C. 317, 333 ; as do many other matters which may be classed as changes in the eir cumstances of the defendant abating the suit, 1 Barr. 244; DougI. 45 ; 6 Term, 50; 7 id. 517 ; 3 Dev. No. C. 155 ; 1 Nott & M'C. So. C. 215; 2 Mass. 485; 1 Ov. Tenn. 224; in cluding a discharge in insolvency, 2 Bail. So. C. 492; 1 Harr. & J. Md. 156; 2 Johns. Cas. N. Y. 403 ; 2 Mass. 481 ; 1 Harr. N. J. 367, 466; 3 Gill &J. Md. 64 ; see 1 Pet. C. C. 484 ; 4 Wash. C. C. 317 ; matters arising from the negligence of the plaintiff, 2 East, 305 ; 2 Boa. & P.358; 6 Term, 3G3; or from irregularities in proceed ing against the defendant. 2 Tidd, Pract. 1182; 3 Sharswood, Blackst. Comm. '292; 3 Yeates, Penn. 389; 4 Yerg. Tenn. 181; 1 Green, N. J. 209; 1 Harr. Del. 134.
4. In those states in which the bail bond is conditioned to abide the judgment of the court as well as to appear, some of the acts above mentioned will not constitute perform ance. See RECOGNIZANCE. The plaintiff may demand from the sheriff an assignment of the bail bond, and may sue on it for his own benefit. Stat. 4 Anne, c. 16, 20; Watson, Sher. 99; 1 Sellon, Pract. 126, 174 ; G Serg. & R. Penn. 545; 2 Jones, No. C. 353; sce 3 M'Cord, So. C. 274 ; 1 Bibb, Ky. 434; 3 Munf. Va. 121 ; unless he has waived his right so to do, 1 Caines, N. Y. 55 ; or has had all the advantages he would have gained by entry of special bail. 4 Binn. Penn. 344; 2 Serg. & R. Penn. 284 ; 5 id. 50. See 1 Browne, Penn. 238, 250.
As to the court in which suit must be brought, see 4 M'Cord, So. C. 370 ; 1 Hill, So. C. 604; 13 Johns. N. Y. 424; 9 id. 80; 6 Serg. & R. Penn. 543; 1 Ga. 315.
The remedy is by scire facias in Massachu setts, New Hampshire, North Carolina, South Carolina, Tennessee, Texas, and Vermont. 15 Pick. Mass. 339; 2 N. H. 359; 2 Hayw. No. C. 223 ; 9 Yerg. Tenn. 223 ; 2 Brev. So. C. 84, 318 ; 21 Vt. 409 ; 22 id. 249 ; 6 Tex. 337.