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common bail and NAME

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  • jm367@bellsouth.net
    Common bail is a fictitious proceeding, intended only to express the appearance of a defendant, in cases where special bail is not required. It is put up in
    Message 1 of 1 , Apr 30, 2004
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      Common bail is a fictitious proceeding, intended only to express the appearance of a defendant, in cases where special bail is not required.  It is put up in the same form as special bail, but the sureties are merely nominal or imaginary persons, as John Doe and Richard Roe.  3 Bl. Comm. 287.   Special bail is responsible sureties who undertake as bail above, as distinguished from bail below or bail to the sheriff.
      If the legislatures abolished special bail, common bail would still be required.  We know special bail is not now part of the process.
       
      This make me suspect that the courts may view NAME as a surety put up in common bail.
      Many are confusing these matters: surety for appearance and surety for debt and surety for costs and condemnation.  
       
      Bail below ("bail bond" or "bond to the sheriff") is surety the defendant will appear to answer the plaintiff; this is suspended or amended now, except in criminal cases. 
       
      Special bail or bail above is by recognizance, which was matter of record, and an act of appearance and by it the bail (responsible sureties) were bound that if the defendant be condemned in the action, the costs and condemnation (amount recovered against him), will be paid by him or he will render himself a prisoner or that the responsible sureties will pay it for him.   So, now it seems all special bail is common bail (fictitious proceeding) and NAME is the nominal or imaginary person who is the responsible surety on the court's record.  That' may well be why all the property is in NAME, so the creditors can reach it whenever named defendant defaults appearance to answer the plaintiff.
       
      Making a special appearance throws a monkey wrench in their machine.  They have no appearance (general appearance) and no recognizance.  When they come against NAME as common bail reponsible surety in traffic court, they have a power of attorney from the auto title application (Virginia) or from other vehicle related application.   Even if NAME is not fictitious, this is how it works.
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