BAIL (OF. bailler, to carry, give, deliver, from Lat. baiulare, to carry a burden, from bandits, porter; carrier). The delivering up of a person under arrest, or against whom personal proceedings have been instituted, to accepted sureties who give security for his appearance at the proper time before the court, or for his carrying out the judgment of the court. The form of this security is usually a bond executed by the sureties, or a recognizance (q.v.) ac knowledged by them. The term bail is also commonly given as well to the security given and to Ihe persons who give the security.
Bail may be asked either in a criminal or a civil ease, but in the latter only when the person is proceeded against. With the modern changes of the laws permitting the arrest of a debtor, the applicability of bail in civil eases has very greatly decreased. A person who has been bailed is placed in the custody of the surety who gives bail for him. Ile may, therefore, be arrested by the surety at any time and surrendered to the court, and when this is done the responsibil ity of the surety at once ceases. The surety is hound to produce his principal at the specified time unless prevented by the sickness, death, or legal imprisonment of the principal. In obtain ing possession of the person of the principal, the surety has the right to call upon the sheriff or other law officers to assist him. An accused person has a right to demand the privilege of bail at any time between the arrest and the final judgment of the court. The responsibility of the surety ceases upon the appearance in court of the principal at the proper time. If he does not so appear, the bond given as security may at once be declared forfeited by the court; whereupon execution may issue as for any judg ment, and collection may be made forthwith. Under the common law, bail could not be de !Handed in eases of felony. By statute law in Great Britain, and now universally in the United States, however, hail can be demanded in all cases except those of capital offenses. Consider able discretion is left to the magistrate as to whether an offense may or may not be such as properly to admit of bail. Thus, where an as sault has been committed under such circum stances as to make it murder if the injured per son should die, and where there is reasonable probability that death may ensue, a magistrate in any of our States would refuse to accept bail.
Generally speaking, in the United States the common law is closely followed in the regulation of bail. The English Bill of Rights (1 Will. and M. 2, ch. 2), the Constitution of the United
States, and those of the several States pre scribe that excessive bail shall not be demanded.
What excessive hail may be is generally left to the determination of the court, though the criminal codes of many States specify a mini mum sum for each class of offenses against the law, a lower amount than which shall not be accepted as security in such cases. A bail piece was originally a certificate issued to the surety attesting his act of offering bail; at present it generally signifies a warrant issued to the suret:V upon which lie may arrest the person for whom bail has been taken. The term straw bait is a familiar designation of bail offered by persons not possessing the requisite financial responsibil ity, but willing to swear that they do possess it. The term is said to have originated in the fact that in the English bankruptcy courts such ras cals were always in waiting in the outer halls, and that it was their custom to carry straw fastened on the shoe to signify the kind of ser vice they were willing to render. At the present day, in civil cases, bail cannot be required unless there is some allegation of fraud involved, such as that the defendant is suspected of the design of putting property out of the reach of the court, or where he is arrested in a debt proceed ing, and affidavit is made that he is about to leave the State, or where a tort or personal in jury of a malicious kind is alleged. The old distinction in civil cases between common hail (or bail below) and special bail (bail above or bail to the action) is, therefore, not now of such consequence as formerly. Common bail, or bail below, was in effect an undertaking that the defendant would appear before the court at the day and place named in the process; special bail was a more general undertaking, entered into after such appearance had been made, that the defendant should satisfy the judgment of the court in damages, debt, or cost, or failing to do so, should surrender his person to the court. The statutes of the States and the practice of the courts usually require persons giving bail to be possessed of real estate or property not easily removable from the jurisdiction of the court. In admiralty bail is often required. in actions in rein, to procure the discharge of the property proceeded against. The bail is in the form of a stipulation, by which the owner of the seized property and his sureties undertake to pay and perform the final decree in the ease. Consult the authorities referred to under PRAC TICE.