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gage. Large sums of money, for example, carried in a travelling trunk, will not be considered baggage, so as to render the carrier responsible. 9 Wend. R. M. In general a common carrier of passengers is responsible for the baggage, if lost, though no distinct price be paid for transporting it, it being included in the passenger's fare. Ib. The carrier's responsility for the baggage begins as soon as it has been delivered to him, or to his servants, or to some other person authorised by him to receive it. Then the delivery is complete. The risk and responsibility of the carrier is at an end as soon as he has delivered the baggage to the owner or his agent; and, if an offer to deliver it be made, at a proper time, the carrier will be discharged from responsibility, as such; and, if the baggage remain in his custody afterwards, he will hold as bailee, and be responsible for it according to the terms of such bailment. 3 Dana, R. 92. Vide Common Carriers. By the act of congress of March 2,1799, sect. 46,1 Story's L. U. S. 612, it is declared that all wearing apparel and other personal baggage, &c, of persons who shall arrive in the United States, shall be free and exempted from duty.
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 discha ged from arrest without ba I, after the return day of the writ, and
it is necessary in such case to perfect the appearance of the defendant. Steph. PI. 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 appear at a certain time and place to answer a certain charge to be exhibited against him. The person who enters into this undertaking is also called the bail. 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 Peterd. Ah. 196; 8 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 re apect of such property. 1 Chit. R, 286, n. As to the persons who cannot be received because they are not responsible, see 1 Chit. R. 9,116; 2 Chit. R. 77, 8; Lofft, 72, 184; 3 Pctersd. Ab. 112; 1 Chit. R. 309, n. The term bail is sometimes applied, with a want of exactness, to the security given by a defendant in order to obtain a stay of execution, after judgment. It is a general rule that a defendant having once been held to bail, cannot be held a second time for the same cause of action. Tidd, Pr. 184; Grah. Pr. 98 ; Troub. & Hal. 44; 1 Yeates, R. 206; 8 Ves. Jr. 594. See articles Auter action pendent; Lis Pendens.—2. Bail in criminal cases is defined to be a delivery or bailment of a person to his sureties, 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." Amendm. art. 8. By the acts of congress of September, 24, 1789, s. 33, and March 2, 1793, s. 4, authority is given to take bail for 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, where 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, mare, or gelding, on the direct testimony of one witness; or shall be taken having possession of such horse, mare or gelding, the justice of the peace cannot admit the party to bail. 1 Smith's L. of Pa. 581. In all cases where the party is admitted to bail, the recognizance is to be returned to the court having jurisdiction of the offence charged. Vide Act of God; Arrest; Auter action pendent; Death; Lis pendens.
BAIL ABOVE, practice, is putting in bail to the action, which is an appearance. Bail above are bound either to satisfy the plaintiff his debt and costs, or to surrender the defendant in custody, provided judgment should be against him and he should fail to do so. Sell. Pr. 137.
BAIL BELOW, practice, is bail given to the sheriff in civil cases, when the defendant is arrested on bailable process; which is done by giving him a bail bond; it is so called to distinguish it from bail above, (q. v.) The sheriff is bound to admit a man to bail, provided good and sufficient sureties be tendered, but not otherwise. The sheriff is not however bound to demand bail, and may, at his risk, permit the defendant to be at liberty, provided he will appear, that is, enter bail above or surrender himself in proper time. 1 Sell. Pr. 126, et seq. The undertaking of bail below is that the defendant will appear or put in bail to the action on the return day of the writ.
BAIL BOND, practice, contracts. A specialty by which the defendant and other persons, usually not less than two, though the sheriff may take only one, become bound to the sheriff in a penalty equal to that for which bail is demanded, conditioned for the due appearance of such defendant to the legal process therein described, and by which the sheriff has been commanded to arrest him. It is only where the defendant is arrested or in the custody of the sheriff, under other than final process, that the sheriff can take such bond. On this bond being tendered to him, which he is compelled to take if the sureties are good, he must discharge the defendant. With some exceptions, as for example, where the defendant surrenders, 6 T. R. 754; 7 T. R. 123; 1 East, 387; 1 Bos. & Pull. 326, nothing can be a performance of the condition of the bail bond, but putting in bail to the action. 5 Burr. 2683. The plaintiff has a right to demand from the sheriff an assignment of such bond, so that he may sue it for his own benefit. Wats. on Sheriff, 09; 1 Sell. Pr. 126, 174. For the general requisites of a bail bond, see 1 T. R. 422 ; 2 T. R. 569; 15 East, 320; 2 Wils. 69; 6 T. R. 702; 9 East, 55; 5 D. & R. 215; 4 M. & S. 338; 1 Moore, R. 514; 6 Moore, R. 264; 4 East, 568; Hurls. on Bonds, 56; U. S. Dig. Bail V.
BAIL PIECE, is a certificate given by the clerk of the court, or person lawful authorised to keep the
record, in which it is certified that A B, the bail, became bail for C, D, the defendant, in a certain sum, and in a particular case. As the bail is supposed to have the custody of the defendant, when he is armed with this process, he may arrest the latter, though he is out of the jurisdiction of the court in which he became bail, and even in a different state. 1 Baldw. 578 ; 3 Conn. 84,421; 2 Yeates,263; 8 Pick. 138; 7 John. 145; 3 Day 4*5; the bail may take him even while attending court as a suitor, or any time even on Sunday, 4 Yeates, 123; 4 Conn. 170. He may break even an outer door, to seize him, command the assistance of the sheriff or other officers. 8 Pick. 138; and depute his power to others. 1 John. Cas. 413; 8 Pick. 140. See 1 Serg. & R. 311.
BAILEE, contracts, -is one to whom goods are bailed. His duties are to act in good faith; he is bound to use extraordinary diligence in > those contracts or bailments, where he alone receives the benefit, as in loans; he must observe ordinary diligence in those bailments, which are beneficial to both parties, as hiring; and he will be responsible for gross negligence in those bailments which are only for the benefit of the bailor, as, deposit and mandate. Story's Bailm. § 17, 18, 19. He is bound to return the property as soon as the purpose for which it was bailed shall have been accomplished. And he has generally a right to retain and use the thing bailed, according to the contract, until the object of the bailment shall have been accomplished.
BAILIFF, office. Magistrates who formerly administered justice in the parliaments or courts of France, answering to the English sheriffs as mentioned by Bracton. There are still bailiffs of particular towns in England; as the bailiff of Dover Castle, &c, otherwise bailiffs are now only officers or stewards, <Scc.; as Bailiffs of liberties, appointed by every lord within his liberty, to serve writs, &c. Bailiff errant or itenerant, appointed to go about the country for the same purpose. Sheriff's bailiffs, sheriff's officers to execute writs; these are also called bound bailiffs, because they are usually bound in a bond to the sheriff for the due execution of their office. Bailiffs of court baron, to summon the court, &c. Baliffs of husbandry, appointed by private persons to collect their rents and manage their estates. Water bailiffs, officers in port towns for searching ships, gathering tolls, &c. Bac. Ab. h. t.
BAILMENT, contracts. This word is derived from the French, bailler, to deliver. 2 Bl. Com. 451; Jones's Bailm. 90; Story on Bailm. c. 1, § 2. It is a compendious expression to signify a contract resulting from delivery. It has been defined to be a delivery of goods, on a condition express or implied, that they shall be restored by the bailee to the bailor, or according to his directions, as soon as the purpose for which they are bailed, shall be answered. Jones's Bailm. 1. Or it is a delivery of goods in trust, on a contract either expressed or implied, that the trust shall be duly executed, and the goods redelivered, as soon as the time or use for which they were bailed, shall have elapsed or be performed. Jones's Bailm. 117. Each of these definitions, says Judge Story, seems redundant and inaccurate, if it be the proper office of a definition to include those things only which belong to the genus or class. Both these definitions suppose that the goods are to be restored or redelivered; but in a bailment for sale, as upon a consignment to a factor, no redelivery is contemplated between the parties. In some cases no use is
contemplated by the bailee; in others, it is of the essence of the contract; in some cases time is material to terminate the contract; in others, time is necessary to give a new accessorial right. Story on Bailm. c. 1, § 2. Mr. Justice Blackstone has defined a bailment to be a delivery of goods in trust, upon a contract either express or implied, that the trust shall be faithfully executed on the part of the bailee. 2 Bl. Com. 451. And in another place as the delivery of goods to another person for a particular use. 2 Bl. Com. 395. Vide Kent's Comm. Lect. 40, 437. Mr. Justice Story says, that a bailment is a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust. Story on Bailm. c. 1, § 2. This corresponds very nearly with the definition of Merlin. Vide Repertoire, mot Bail.
Bailments are divisible into three kinds; 1, Those in which the trust is for the benefit of the bailor, as deposits and mandates. 2, Those in which the trust is for the benefit of the bailee, as gratuitous loans for use. 3, Those in which the trust is for the benefit of both parties, as pledges or pawns, and hiring and letting to hire. See Deposit; Hire; Loans; Mandates; and Pledges. Sir Wm. Jones has divided bailments into five sorts, namely, 1,Depositum,or deposit; 2, Mandatum, or commission without recompense; 3, Commodatum, or loan for use, without pay; 4, Pignori acceptum, or pawn; 5, Locatum, or hiring, which is always with reward. This last is subdivided into, 1, Locatio rei, or hiring, by which the hirer gains a temporary use of the thing; 2. Locatio operis faciendi, when something is to be done to the thing delivered; 3, Locatio operis mercium vehendarum when the thing is merely to be carried from one place to another. See these several words.
As to the obligations and duties of bailees in general, see Diligence, and Storv on Bailm. c. 1; Chit. on Cont. 141; 3 John. R. 170; 17 Mass. R. 479; 5 Day, 415; 1 Conn. Rep. 487; 10 Johns. R. 1,471; 12 Johns. R. 144, 232; 11 Johns. R. 107 ; 15 Johns. R. 39; 2 John. C. R. 100; 2 Caines's Cas. 189; 19 Johns. R. 44; 14 John. R. 175; 2 Halst. 106; 2 South. 738; 2 Harr. & M'Hen. 453; 1 Rand. 3; 2 Hawks, 145; 1 Murphy, 417; 1 Hayw. 14 ; 1 Rep. Con. Ct. 121, 186; 2 Rep. Con. Ct. 239; 1 Bay, 101; 2 Nott & M'Cord, 88, 489; 1 Browne, 43, 176; 2 Binn. 72; 4 Binn. 127; 5 Binn. 457; 6 Binn. 129; 6 Serg. & Rawle, 439; 8 Serg. & Rawle, 500, 533; 14 Serg. & R. 275. Bac. Ab. h. t.
BAILOR, contracts, he who bails a thing to another. The bailor must act with good faith towards the bailee. Story Bailm. § 75, 76, 77; permit him to enjoy the thing bailed according to contract; and, in some bailments, as hiring, warrant the title and possession of a thing hired, and probably, to keep it in suitable order and repair for the purpose of the bailment. Ib § 388—392. Vide Inst. lib. 3, tit. 25.
BAILIWICK, is the district over which a sheriff has jurisdiction; it signifies also the same as county, the sheriff's bailiwick extending over the county. In England, it signifies generally that liberty which is exempted from the sheriff of the county over which the lord of the liberty appoints a bailiff. Vide Wood's Inst. 206.
BAIR-MAN, Scottish law. A poor insolvent debtor left bare.
BAIRN'S PART, Scottish law. Children's part; a third part of the defunct's free movables, debts deducted, if the wife survive, and a half if there be no relief.
BALANCE, comm. law, is the
amount which remains due by one of two persons, who have been dealing together, to the other, after the settlement of their accounts. In the case of mutual debts the balance only can be recovered by the assignee of an insolvent, or the executor of a deceased person. But this mutuality must have existed at the time of the assignment by the insolvent, or at the death of the testator. The term general balance is sometimes used to signify the difference which is due to a party claiming a lien on goods in his hands, for work or labour done, or money expended in relation to those and other goods of the, debtor. 3 B. & P. 485; 3 Esp. R. 268.
BALANCE, evidence. When a witness has an interest in the cause which renders him incompetent, and there is a countervailing interest on the other side which reduces him to a state of neutrality, his interest is said to be balanced; as, when a person acknowledges he has received money as an agent, he may prove whether he received it for the plaintiff or the defendant. 7 T. R. 481, note; 2 East, R. 458; but the least interest, as where in the one case the witness would be liable for costs, and in the other he would not, the equilibrium is destroyed. 4 Taunt. 464.
BALANCE OF TRADE, comm. law, is the difference between the exports and importations between two countries. The balance of trade is against that country which has imported more than it has exported, for which it is debtor to the other country.
BALIVA, a bailiwick or jurisdiction.
BALIVO AMOVENDO, English practice. A writ to remove a bailiff out of his office.
BALLAST AGE, mar. law, a toll paid for the privilege of taking up ballast from the bottom of the port. This arises from the property in the soil. 2 Chit. Com. Law, 16.