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BAIL.

BAIL (from the French bailer, to deliver) signifies the delivery of a man out of custody, on the undertaking of one or more persons for him, that he shall appear at a day limited, to answer, and be justified by the law.

Summ. 96.

I. The difference between bail and mainprise. II. When a person may be discharged without bail. III. Who may or may not be bailed. IV. Who may bail, and the manner of it. V. Of granting bail where it ought to be denied. VI. Of refusing bail where it ought to be admitted. VII. Requiring excessive bail. VIII. Of bail by writ of habeas corpus. IX. When bail shall be required in civil actions. X. When bail shall not be required in civil actions, without the direction of a Judge or Justice. XI. Special cases, in which bail is directed by the laws of the commonwealth. XII. Of fences punishable, by the laws of this commonwealth, by imprisonment, without bail or mainprise.

I. THE DIFFERENCE BETWEEN BAIL AND MAINPRISE.

The difference between bail and mainprise is, that mainpernors are only surety, but bail is a custody; and therefore the bail may retake the prisoner, if they doubt he will fly, and detain him, and bring him before a justice, and the justice ought to commit the prisoner in discharge of the bail, or put him to find new sureties. Summ. 96. Co. Law tracts 280.

II. WHEN A PERSON MAY BE DISCHARGED WITHOUT

BAIL.

If a prisoner be brought before a justice of peace expressly charg ed with felony by the oath of a party, the justice cannot discharge him, but must bail or commit him. 2 Hale 121.

But if he be charged with suspicion of felony only, yet if there be no felony at all proved to be committed, or if the fact charged as a

felony be in truth no felony in point of law, the justice of peace may discharge him. lbid.

III. WHO MAY OR MAY NOT BE BAILED.

"Those shall be let to bail who are apprehended for any crime not punishable with death, or confinement in the jail and penitentiary; and if the crime be so punishable, but only a light suspicion of guilt fall on the party, he shall in like manner be bailable: But if the crime be punishable with death, or confinement in the jail and penitentiary, and there be good cause to believe the party guilty thereof, he shall not be admitted to bail. 2 Rev. Code 81. But no person shall be Ďailed after conviction of any felony." 1 Rev. Code 17.

For those offences punishable by confinement in the penitentiary. See title "PENITENTIARY."

IV. WHO MAY BAIL, AND THE MANNER OF IT.

It seems to be a general rule, that so far as any persons are judges of any crime, so far they have power of bailing a person indicted before them of such crime. So may a justice of the peace bail a person arrested for felony. Haw. B. 2. C. 15. S. 54.

Any one justice might always in his discretion either bail or imprison one who has given another a dangerous wound, according as it shall appear from the whole circumstances that the party is most likely to live or die. Ibid.

A person who is to take bail may examine them on their oaths as to their sufficiency. 2 Hale 125.

And if a person who has power to take bail be so far imposed upon as to suffer a prisoner to be bailed by insufficient persons, either he, or any other person, who hath power to bail him, may require the party to find better sureties, and to enter into a new recognizance, and may commit him on his refusal; for insufficient sureties are no sureties. Haw. B. 2. C. 15. S. 4.

No person should be admitted to bail by less than two sureties, either of which should be sufficient to answer the sum in which they are bound. Ibid.

With respect to the power of bailing an offender sent for further trial by the court of examination, see title "CRIMINALS."

V. OF GRANTING BAIL WHERE IT OUGHT TO BE DENIED.

"If any justice let any go at large who is not bailable, or refuse to admit to bail any who have right to be so admitted, after they shall have offered sufficient bail, or require excessive bail, he shall be amerced at the discretion of a jury."1 Rev. Code 17.

An information was granted against a justice of the peace in England, for admitting a man to hail on suspicion of horse-stealing. Stra.

1216.

VI. OF REFUSING BAIL WHERE IT OUGHT TO BE

ADMITTED.

Denying bail where it ought to be granted is a misdemeanor, not only by the statute, but also by the common law, and punishable thereby, not only by action at the suit of the party injured, but also by indictment. Haw. B. 2. C. 15. S. 13.

But the party should offer sureties. Ibid. S. 14.

VII. REQUIRING EXCESSIVE BAIL.

By the declaration of rights of Virginia, article 9, it is declared, "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted." The same principle is adopted in the amendments to the constitution of the United States, article 10.

VIII. OF BAIL BY WRIT OF HABEAS CORPUS.

As the enlargement of a prisoner may in most cases be procured by writ of habeas corpus, it has been usual in treatises of this kind to confound that subject with the doctrine of bail. But it more properly makes a distinct title of itself.

IV. WHEN BAIL SHALL BE REQUIRED IN CIVIL ACTIONS.

In all actions of debt, founded on any writing obligatory, bill or note in writing, for the payment of money or tobacco, and all actions of covenant, or detinue, the plaintiff or his attorney shall, on pain of having his suit dismissed with costs, indorse on the original writ or subsequent process the true species of action, and that appearance bail is required. 1 Rev. Code 78, 87.

Appearance bail is not required in actions of debt on bonds with collateral conditions. 2 Wash. 183.

X. WHEN BAIL SHALL NOT BE REQUIRED IN CIVIL ACTIONS, WITHOUT THE DIRECTION OF A JUDGE OR JUSTICE..

In all actions to recover the penalty for breach of any penal law, not particularly directing special bail to be given, in actions of slander, trespass, assault and battery, actions on the case, for trover or other wrongs, and all personal actions, except those above enumerated (viz. debt, covenant, and detinue) the plaintiff or his attorney shall in like manner and under like penalties indorse on the original writ or subsequent process, the true species of action," that the sheriff to whom the same is directed may be thereby informed whether bail is to be demanded on the execution thereof. Rev. Code 77, 87.

But a judge or justice may direct bail, by indorsement on the writ. Rev. Code 78, 87.

No bail shall be demanded of a defendant sued out of his county, until a non est inventus be returned therein; unless the cause of action accrued where the suit is brought and a writ issued otherwise

without an endorsement, " no bail required," shall be voidable, &c. 1 Rev. Code, 88.

Formerly a suit could not be brought against a defendant in a district other than that in which he resided, till the return of a non est inventus therein. (1 Rev. Code, 77.) But now a suit may be brought in any circuit where the cause of action arose, and the defendant held to bail. See acts of 1808, page 12.

Writs issued contrary to the above laws are to be avoided by pleà in ubatement. See 3 Tuch. Bl. App. 38.

No special bail shall be required in any action on a penal law, unless by such law it be expressly directed. 1 Rev. Code, 106.

The same summary remedy is now given to the common bail who actually pays money on account of the principal, as to secu rities against their principals. 1 Rev. Code, 282.

As to the plaintiff's remedy against the sheriff for taking insufficient, or for failing to take bail, when required; and the bail's and sheriff's remedy against the defendant's estate by attachment; also, when exceptions may be taken to bail returned by sheriff. See 1 Rev. Codes

78, 87, 88.

But if the plaintiff does not, in the first instance, except to the sufficiency of the appearance bail, he cannot afterwards object to receive ing him as special bail. 1 H. and M. 22.

And after the appearance bail has defended the suit and pleaded, the defendant may at a subsequent term be admitted to appear, and give as special bail the same person who was appearance bail, file a plea, and go to trial. Ibid.

For those persons who are privileged from arrests, and consequently cannot be held to bail, see title " ARREST."

XI. SPECIAL CASES, IN WHICH BAIL IS REQUIRED BY THE LAWS OF THIS COMMONWEALTH.

BALLAST. In any suit brought for the penalties against the owner of a vessel, for unlading ballast, or casting dead bodies into the water, contrary to law. 1 Rev. Code, p. 205.

CONVICTS. In all actions for the penalty of 50%. for bringing any convict into this state. 1 Rev. Code, 40.

FLOUR. On actions for the penalties on the act to regulate the Inspection of flour and bread. 1 Rev. Code, p. 231.

GAMING. On executing a capias, after judgment for unlawful gaming. 2 Rev. Code, p. 13.

HOGSTEALING. In all suits or informations brought against free persons for hogstealing. 1 Rev. Code, 177.

QUARANTINE. In suits for penalties for breach of laws of quarantine. Rev. Code, p. 245.

SAILORS, &c. sick or disabled.

In any action of debt or information brought against the master of a vessel for putting on shore any sick or disabled sailor or servant, without providing for their maintenance and cure. 1 Rev. Code, p. 205.

SLAVES. Against the master of a vessel or others, for carrying a slave out of the state, or removing him from one county to another,

&c. (1 Rev. Code, 192, 374. 2 Rev. Code, 84.) Against masters of vessels, for dealing with slaves. 1 Rev. Code, 432. 2 Rev. Code, 85.

TRANSPORTING DEBTORS out of the state. In all actions against the masters of vessels for carrying debtors out of the country, without having advertised their intention to depart, for six weeks successively, in the Virginia Gazette. 1 Rev. Code, p. 118.

XII. OFFENCES PUNISHABLE BY THE LAWS OF THIS COMMONWEALTH, BY IMPRISONMENT WITHOUT BAIL OR MAINPRISE.

BASTARDS. Reputed father of a bastard child refusing to enter into a recognizance to perform the order of court, for the maintenance of the child, to be imprisoned without bail or mainprise till he comply, &c. 1 Rev. Code, 184. 2 Rev. Code, 93.

CLERKS of COURTS, executing their office, without taking the oath prescribed by law, forfeit fifteen hundred dollars, and suffer one year's imprisonment without bail or mainprise. I Rev. Code, 94.

CONVICTS. For bringing any convict into this state, three months imprisonment without bail. 1 Rev. Code, f. 40.

COUNTERFEITING LETTERS, or privy tokens. Imprisonment without bail for any space not exceeding one year. 1 Rev. Code, f. 45. MARRIAGES. Ministers celebrating marriages without licence or publication of banns, twelve months imprisonment without bail. 1 Rev. Code, p. 193.

Granting false certificate of publication of banns, the same penalty as next above.

Clerk of the court granting marriage licence contrary to law. 1 Rev. Code, p. 195.

White persons marrying with negroes or mulattoes, six months imprisonment without bail. 1 Rev. Code, p. 196.

ORDINARIES. A person convicted of keeping a tippling house, or a second time of retailing liquors without licence; six months imprisonment without bail. 1 Rev. Code, p. 203.

PERJURY. A person guilty of it is punishable by fine not exceeding two hundred pounds, and imprisonment twelve months without bail or mainprise. 1 Rev. Code. p 46.

SLAVES. Forging certificate of emancipation of; a fine of two hundred dollars, and imprisonment one year without bail, &c. 1 Rev. Code, 347.

SMALL POX. A person wilfully endeavouring to propagate it, contrary to law; a fine of fifteen hundred dollars, or six months imprisonment without bail, &c. 1 Rev. Code, 202.

WOMEN. Taking away a woman under the age of sixteen years, imprisonment without bail, &c. not exceeding two years. 1 Rev. Code, f. 196.

Taking away and deflouring, five years imprisonment without bail. i Rev. Code, 197.

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