Surety means a person other than the defendant who, by executing a bail bond, guarantees the appearance of the defendant. When bail is given, the principal is regarded as delivered to the custody of his/her sureties[i]. Their dominion is a continuance of the original imprisonment.
An individual will be accepted as a surety on any bail bond only if s/he possesses the qualifications such as[ii]:
- s/he should be a reputable person, at least 21 years of age and a bona fide resident of the state.
- s/he should not have been convicted of any felony under the laws of any state or of the U.S.
- s/he should not be an attorney-at-law, a peace officer, a constable or a deputy constable.
- s/he should not be an elected or appointed official or employee of the state or any county or other political subdivision thereof.
- s/he should have no outstanding forfeiture or unsatisfied judgment thereon entered upon any bail bond in any court.
Additionally, state statutes provides that an individual will be taken as a surety on any bail bond only if s/he is the owner of real estate or personal property having a reasonable market value, at least equal to the amount specified in the bond which s/he proposes to execute[iii].
In order to qualify upon the basis of real estate owned, an individual should be the sole, legal and equitable owner thereof in fee simple and of record. Further, if there are several sureties, the aggregate market value of real estate or personal property owned by them in excess of encumbrances, exemptions and all other liabilities, should be at least equal to the amount specified in the bond.
For the purpose of a bail bond and to make control of a principal by a surety effective, a surety has been regarded as subrogated to the rights and means possessed by the state for that purpose.
The surety is entitled to seize his/her principal for the purpose of surrendering him/her in discharge of the surety’s liability and, to the extent necessary to accomplish this, the surety may restrain of principals’ liberty.
The surety is entitled to take the principal into custody and at common law no process was necessary to authorize the arrest of the principal by his/her bail[iv].
The fact that sureties in a criminal bail-bond are indemnified will not increase their legal liability on such bond[v]. Bail in such cases will be exonerated, where the performance of the condition is rendered impossible by an act of God, the obligee, or the law.
The surety’s contract resembles more a contract to perform services than a contract of insurance. Since a surety’s principal obligation is to produce the accused at trial, the monetary obligation is merely an assurance of or inducement to perform that principal obligation.
Also, the forfeiture of the surety’s bond, if the accused fails to appear serves more as a penalty for the surety’s own failure to perform[vi].
A breach in a condition of a bond written by a surety before a state court could result in a judgment of default and execution upon the bond without the necessity of an independent action[vii].
[i] Taylor v. Taintor, 83 U.S. 366 (U.S. 1873).
[ii] Bruno v. Commissioner, 71 T.C. 191 (T.C. 1978).
[iv] Prof’l Bail Bonds, Inc. v. State, 185 Md. App. 226 (Md. Ct. Spec. App. 2009).
[v] Taylor v. Taintor, 83 U.S. 366 (U.S. 1873).
[vi] Bruno v. Commissioner, 71 T.C. 191 (T.C. 1978).