BAIL PIECE - The Law Mind Legal Dictionary

BAIL PIECEAuthored

The Law Mind • 1032 words

Definition

A bail piece is a formal written memorandum or certificate recording the recognizance (undertaking) of special bail in a civil action. After the surety signs and acknowledges the instrument before the proper officer, it is filed in the court where the action is pending. The bail piece serves as the official court record that named individuals have undertaken responsibility for the defendant's appearance or satisfaction of judgment.

In historical common-law practice, the bail piece had a secondary procedural function: it was the instrument by which special bail could formally surrender the principal (the defendant for whom they had gone bail) back into custody, thereby discharging their own liability. By delivering up the principal — sometimes accomplished by physically presenting him and producing the bail piece — the sureties could exonerate themselves before judgment was entered against them.

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Common Confusion

BAIL PIECE vs. BAIL BOND: These instruments are related but distinct. A bail bond is the underlying obligation — the promise by sureties to produce the defendant or pay a penalty. The bail piece is the formal court filing that memorializes the recognizance of special bail (bail above) once it has been perfected. Researchers encounter both terms in historical civil practice records and should not treat them as interchangeable. Bail bonds appear in criminal and civil contexts broadly; bail pieces are creatures of civil common-law procedure and are almost exclusively found in that context.

BAIL PIECE vs. BAIL TO THE ACTION (SPECIAL BAIL / BAIL ABOVE): Bail above (also called special bail or bail to the action) refers to the persons who undertake the surety obligation. The bail piece is the document that records their undertaking. One is the party; the other is the paper.

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Why It Matters in Research

The bail piece is an archaic procedural instrument and researchers will encounter it almost exclusively in pre-twentieth-century civil practice materials, common-law pleading treatises, and historical court records. It has no meaningful modern equivalent in American practice — the procedural world that generated it (arrest of defendants in civil actions, surrender of principal by sureties, bail above versus bail below) has largely been abolished.

Several navigational traps arise in historical research:

First, the term appears in a specifically civil-law context, not criminal. Researchers working on historical bail practices in criminal cases will find the bail piece largely irrelevant; the term belongs to civil arrest procedure, not to the recognizance system governing criminal defendants. Do not conflate discussions of criminal bail reform with this instrument.

Second, the surrender function is critical for understanding historical surety liability. When sureties wished to be discharged before judgment, they could surrender the principal and produce the bail piece. This mechanism explains why bail pieces appear not just in filing records but in surrender proceedings and related motions. Understanding this function is essential to interpreting any historical case involving surety exoneration.

Third, corpus connections: The bail piece appears in English and early American practice manuals — Blackstone's Commentaries (Book III), Tidd's Practice, and similar treatises are primary reference points. Researchers working in early American court records (colonial through mid-nineteenth century) may find bail pieces as discrete filed instruments. Their presence signals that the defendant's bail had been perfected as special bail (bail above), as opposed to the defendant remaining on common bail (bail below).

Fourth, Bouvier's note about the requirements for the bail bond underlying the bail piece carries practical weight: the instrument must identify the action with sufficient accuracy to distinguish it. A bail piece or associated bond that fails to specify the charge or action was treated as void — a defect that could not be cured by extrinsic testimony.

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Historical Dictionary Support

Black's Law Dictionary defines the bail piece as "a formal entry or memorandum of the recognizance or undertaking of special bail in civil actions, which, after being signed and acknowledged by the bail before the proper officer, is filed in the court in which the action is pending," citing Blackstone's Commentaries (3 Bl. Comm. 291) and Tidd's Practice (1 Tidd, Pr. 250). This is the clearest and most workable definition in the historical sources.

Bouvier's adds procedural texture, particularly on the requirements of the underlying bond: the action must be described with sufficient accuracy to distinguish it, citing Massachusetts and Pennsylvania authority, though the nature of the suit need not be disclosed. Bouvier's further notes that a bail bond failing to specify the charge is void and the defect is not remediable by testimony. Bouvier's also preserves a secondary definition — a certificate given by a judge, clerk, or other officer — which points to the instrument's dual function as both a filed memorandum and an issued certificate.

Rapalje & Lawrence's entry is fragmentary in the provided source material but aligns with Black's framing, describing the bail piece as a formal entry or memorandum of recognizance.

All three sources agree on the core definition. None addresses the term in any modern or post-nineteenth-century context, which accurately reflects the instrument's obsolescence. Researchers should treat all historical dictionary definitions here as describing a common-law procedural artifact with no living American counterpart.

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Jurisdictional Note

The bail piece is an English common-law instrument carried into early American civil practice. Its use was most prominent in jurisdictions that retained common-law civil arrest procedures through the nineteenth century. As civil arrest on mesne process was progressively abolished by statute across American states during the 1800s, the bail piece disappeared along with the procedural system that generated it. No modern American jurisdiction employs the instrument in its historical form.

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Encyclopedia Cross-Reference

Bail and Bond — Types, Determination, and Conditions (The Law Mind Criminal Law Encyclopedia) — primary reference for the broader bail and surety system within which the bail piece operated historically.

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BAIL PIECEmain

Black's Law Dictionary • 1891

In practice. A formal entry or memorandum of the recognizance or undertaking of special bail in civil actions, which, after being signed and acknowledged by the bail before the proper officer, is filed in the court in which the action is pending. 3 Bl. Comm. 291; 1 Tidd, Pr. 250. BAIL ΤΟ THE ACTION, BAIL ABOVE, OR SPECIAL BAIL. In prac- tice. Persons who undertake jointly and severally in behalf of a defendant arrested on mesne process in a civil action that, if he be condemned in the action, he shall pay the costs and condemnation, (that is, the amount which may be recovered against him,) or ren- der himself a prisoner, or that they will pay it for him. 3 Bl. Comm. 291; 1 Tidd, Pr. 245.

BAIL PIECEmain

Bouvier's Law Dictionary • 1928

the action in which the defendant is ar- rested with sufficient accuracy to dis- tinguish it; Hard. 501; 10 Mass. 20; 5 id. 542; 9 Watts 43; but need not disclose the nature of the suit; 6 Term 702. A bail bond which fails to specify the charge which the principal is to answer is void and the de- fect cannot be remedied by testimony; 58 Hun 368. The sureties must be two or more in number to relieve the sheriff; 2 Bingh. 227; 9 Mass. 482; 12 id. 129; 1 Wend. 108; see 5 Rich. S. C. 347; and he may insist upon three, or even more, sub- ject to statutory provisions on the subject: 5 M. & S. 223; but the bond will be binding if only one be taken; 2 Metc. Mass. 490; 8 Johns. 358; 2 Over. 178; 2 Pick. 284; Petersd. B. 264. Putting in bail to the action; 5 Burr. 2683, and waiver of his right to such bail by the plaintiff; 5 S. & R. 419; 11 id. 9;7 Ohio 210; 4 Johns. 185; 6 Rand. 165;2 Day 199; or a surrender of the person of the defendant, constitute a performance or excuse from the performance of the con- dition of the bond; 1 B. & P. 326; 1 Baldw. 148; 1 Johns. Cas. 329, 334; 9 S. & R. 24; 14 Mass. 115; 2 Strobh. 439; 6 Ark. 219; see 4 Wash. C. C. 317, 333; 109 N. C. 775; as do many other matters which may be classed as changes in the circumstances of the defendant abating the suit; Dougl. 45; 1 N. & M'C. 215; 2 Mass. 485; 1 Over. 224; including a discharge in insolvency; 2 Bail. S. C. 492; 1 Harr. & J. 156; 2 Johns. Cas. 403; 2 Mass. 481; 1 Harr. N. J. 367, 466; 3 Gill & J. 64; see 1 Pet. C. C. 484; 4 Wash. C. C. 317; matters arising from the negligence of the plaintiff; 2 East 305; 2 B. & P. 558; 6 Term 363; or from irregu- larities in proceeding against the defend- ant; 2 Tidd, Pr. 1182; 3 Bla. Com. 292;3 Yeates 389; 4 Yerg. 181: 1 Green, N. J. 209; 1 Harr. Del. 134. Where the recogni- zance is for the appearance of a prisoner, and he does appear and pleads guilty, it cannot be forfeited for failure to appear subsequently to answer the sentence; 44 Mo. App. 375. 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 per- formance. See RECOGNIZANCE. The plain- tiff may demand from the sheriff an assign- ment of the bail bond, and may sue on it for his own benefit; Stat. 4 Anne, c. 16, § 20; Watson, Sher. 99; 1 Sellon, Pr. 126, 174; 6 S. & R. 545; 2 Jones, N. C. 353; see 8 Munf. 121; unless he has waived his right so to do; 1 Caines 55; or has had all the advantages he would have gained by entry of special bail; 4 Binn. 344; 2 S. & R. 284. See 1 P. A. Bго. 238, 250. As to the court in which suit must be brought, see 4 M'Cord 370; 1 Hill, S. C. 604; 13 Johns. 424; 9 id. 80; 6 S. & R. 543; 1 Ga. 815. The remedy is by scire facias in Massa- chusetts, New Hampshire, North Carolina, South Carolina, Tennessee, Texas, and Ver- mont; 15 Pick. 339; 2 N. H. 359; 2 Hayw. 223; 9 Yerg. 223; 2 Brev. 84, 318; 21 Vt. 409; 22 id. 249; 6 Tex. 337. The United States is not restricted to the remedies pro- vided by the laws of a state in enforcing a forfeited bond taken in a criminal case, but may proceed according to the common law; 54 Fed. Rep. 221. See JUSTIFICATION. BAIL COURT (now called the Practice Court). In English Law. A court aux- iliary to the court of Queen's Bench at Westminster, wherein points connected more particularly with pleading and prac- tice were argued and determined. It heard and determined ordinary mat- ters, and disposed of common motions; Holthouse, Law Dict.; Wharton, Law Dict. 2d Lond. ed. It has been abolished.

BAIL PIECEmain

Bouvier's Law Dictionary • 1928

A certicate given by a judge or the clerk of a court, or other per-

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