789 



BAIL.- 



BAIL. 



793 



not in coses where the defendant suffered judgment by default. And 

 accordingly it became the common practice of defendants sued upon 

 bills of exchange and other simple contracts, and having no real defence, 

 to delay the plaintiff by suffering judgment by default, and then by 

 bringing a writ of error, in which case they were under no obligation to 

 find bail. These delays were suppressed by an Act, 6 Geo. IV. c. 96, s. 1, 

 introduced by the late Sir Robert Peel, which required bail on every 

 writ of error after judgment for the plaintiff, whether by default or 

 after verdict, unless otherwise ordered by the court or one of its judges. 

 The practice is now regulated by the ' Common Law Procedure Act, 

 1852,' the provisions of which consolidate the previous law, and extend 

 to cases of error in fact, to which the above cited statute of Geo. IV. 

 did not apply. The bail must be put in within four days after 

 lodging the memorandum alleging error, or after the signing final 

 judgment, otherwise the plaintiff in the original action may proceed to 

 take out execution. The recognizance is taken in double the sum 

 recovered by the judgment, except in the ease of a penalty, where 

 it is limited to double the sum really due and double the costs. The 

 bail must justify, if required, and may be opposed by the plaintiff; 

 but as the engagement is not alternative, like that of the bail in the 

 original action, but absolute to pay the sum recovered and costs, bail 

 in error cannot discharge themselves by surrendering their principal ; 

 nor are they entitled to relief if their principal becomes bankrupt. By 

 the 'Common Law Procedure Act, 1854,' an appeal somewhat in the 

 nature of a writ of error is given in certain cases, upon the refusal, or 

 making absolute, or discharging, rules for new trials, or for nonsuit, or 

 to enter verdicts ; and upon such appeals it is provided, sec. 38, that 

 notice of appeal shall be a stay of execution, provided bail to pay the 

 sum recovered and costs, or to pay costs where the appellant was plaintiff 

 below, be given in like manner and to the same amount as bail in error, 

 within eight days after the decision complained of, or before execution 

 delivered to the sheriff. (See Archbold's ' Practice,' 10th edit., by 

 Prentice ; vol. i. pt. 1. cap. 26, and vol. ii. pt. 5, cap. 28.) 



Bail in Criminal Cases. These are the sureties given to the crown by 

 a party accused of a crime, who is allowed by a court or magistrate to 

 be at liberty till trial, on giving security for his due appearance. By the 

 common law, all accused persons, even though charged with heinous 

 felonies, were allowed the privilege of bail, till the crime of murder, 

 and afterwards treason, and other felonies, were excepted by statute. 

 Further regulations were introduced on the subject by statutes of 

 Henry VI., and of Philip and Mary, which contained many nice 

 distinctions as to the offences which were bailable, and those which were 

 not so. The provisions of these statutes respecting bail, were extended 

 by the 7th of Geo. IV., c. 64, s. I, introduced by the late Sir Robert 

 Peel. A subsequent statute, 11 & 12 Viet. c. 42, s. 23, now regulates 

 the law of bail in all cases of felonies, and also of those misdemeanors 

 which are by statute excepted from the common law right of bail. 

 This common law right of bail in all other misdemeanors is recognized 

 and enforced by the same enactment. It enacts that any person charged 

 before a justice with any felony (not being treason), or with any assault 

 with intent to commit felony, obtaining or attempting to obtain pro- 

 perty by false pretences, receiving property stolen or obtained by false 

 pretences, perjury or subornation of perjury, concealing the birth of a 

 child by secret burying or otherwise, wilful and indecent exposure of 

 the person, riot, assault in pursuance of a conspiracy to raise wages, 

 assault upon a police officer in the execution of his duty, or upon any 

 person acting in his aid, neglect or breach of duty as a peace officer, or 

 any misdemeanor for prosecution of which the costs may be allowed, 

 may be bailed at the discretion of the justice or justices. By section 21, 

 provision is made for bailing persons remanded for further examina- 

 tion ; and see hereon in cases of summary jurisdiction the 18 & 19 

 Viet. c. 126, ss. 5 ft 6 ; and the 20 & 21 Viet. c. 43, s. 3. In cases of 

 treason, the justices have, as above stated, no power of taking bail, but 

 such power is reserved to a Secretary of State, to the court of Queen's 

 Bench, or in vacation to a judge thereof. 



The recognizance of bail is conditioned for appearance and surrender 

 of the person charged, at the time and place of trial, and for his then 

 and there pleading and taking his trial, and not departing without 

 leave. This recognizance may in certain cases be removed to the 

 Central Criminal Court, under the 1 9 & 20 Viet. c. 16, s. 10, and the person 

 charged may, after appearance at such court, be again bailed or com- 

 mitted to Newgate, s. 22. Bail may at any time seize and surrender 

 their principal, and thus discharge themselves. 



The above-mentioned Acts apply only to the taking of bail by justices 

 of the peace, and do not in any way affect the authority of the superior 

 court* of law to admit prisoners to bail. The courts of Common Pleas 

 gad Kxchequer, and the Court of Chancery, may, by the common law, 

 award a habeas corpus to bring up any person committed for a crime 

 the degree of felony or treason, and may discharge him, if it 

 appear that the commitment was illegal, or bail him if it appear doubtful. 

 The authority of the chancery is said, indeed, to extend to cases of felony ; 

 that of the other two courts is confined to misdemeanors. The Court 

 of Queen's Bench has a more extensive authority ; that court, or any one 

 of its judges in time of vacation, may bail a party committed for any 

 crime whatever, even for treason or murder ; and they will in general 

 exercise this authority in cases not capital, and also in capital cases, 

 where the circumstances raise a presumption of the party's innocence. 

 But neither the Court of Queen'* Bench nor any other court can bail 



prisoners in executiuu, or suffering imprisonment under the sentence of 

 a competent court for crime, or for a contempt of its authority, unless 

 indeed it is plainly made to appear to that court that they are not 

 guilty of the offence, or unless a prisoner is in danger of losing his life 

 from the effects of continued confinement. And it seems now to be 

 considered as settled that the Court of Queen's Bench has no authority 

 to admit to bail a person committed by either House of Parliament so 

 long as the Parliament is sitting ; though, when the session is at an 

 end, it seems admitted that it possesses such power. Metropolitan 

 police magistrates have under the 2 & 3 Viet. c. 71, s. 36, special powers 

 of bailing persons charged before them, even upon their sole recogni- 

 zance, without surety. Justices of the peace have also special powers 

 under the Juvenile Offenders Act, 10 & 11 Viet. c. 82, s. 15, of bailing 

 either upon remand or commitment for trial, or upon suffering to go 

 at large. Under the 11 & 12 Viet. c. 78, s. 1, the Act establishing the 

 court for the consideration of Crown cases reserved, convicted prisoners 

 upon whom judgment has been postponed, or the execution respited, 

 may be admitted to bail by the court before which they were tried, and 

 this power would seem to extend even to cases of treason. Persons con- 

 victed of misdemeanor, and having obtained a writ of error to reverse 

 the judgment, may obtain an interim stay of execution and discharge 

 from custody, provided they enter into a recognizance with two suffi- 

 cient sureties to prosecute the writ with effect, to appear in court to 

 receive judgment, and to surrender if the judgment be affirmed. See 

 8 & 9 Viet. c. 68, ss. 1, 2; 9 & 10 Viet. c. 24, s. 4., and 16 & 17 Viet. 

 c. 32, ss. 1 , 2. The bail taken, should be such as in the opinion of 

 the justice admitting to bail, will be sufficient to secure the appear- 

 ance and surrender of the person accused at the time and place of trial. 

 Care must however be taken, at least in all cases bailable as of right, 

 not to require such excessive bail as in effect to amount to a denial of 

 bail, which is one of the grievances complained of by the Bill of Rights 

 (1 Will. & Mary, st. II., c. 2), and prohibited by that Act. 



By the 10th Geo. IV. c. 44, s. 9 (the Metropolis Police Act), it is 

 lawful for any constable in London attending at any watchhouse in the 

 night time, to take bail from persons charged with petty misdemeanors, 

 without warrant of a justice, and such recognisances shall be of equal 

 obligation as if taken by a justice of the peace. 



(See Blackstone's Camm,, by Dr. Kerr, vol. iv. p. 349, et seq. ; Bacon's 

 Abridgment, tit. ' Bail in Criminal Cases,' 7th edit.; and Archbold's 

 ' Criminal Practice,' 14th ed., by Welsby.) 



BAIL. In Scotland, this term properly is confined to criminal law. 

 In the civil courts the proper term is caution. Anciently, pledges of 

 prosecution and appearance were demanded from litigants no less uni- 

 versally than in England ; the judicial writs in both countries being 

 then essentially the same. The writs which originate proceedings in 

 the Court of Session however do not now make mention of pledges ; 

 and, accordingly, bail is now known in the Scottish civil courts only in 

 exceptional cases. Two kinds were formerly in use, caution judicio 

 siiti, and caution judicatum solri ; phrases derived from the civil law 

 through the medium of the old French courts, and answering to the 

 forthcoming borgh, and the surety as law will, of the ancient common 

 law of Scotland. Both kinds long continued in use in maritime 

 causes, but by 13 & 14 Viet. c. 36, s. 24, they are abolished in such 

 causes in the Court of Session ; and by 1 & 2 Viet. c. 86, s. 22, caution 

 judicatum solvi cannot be demanded in such causes in the Sheriff 

 Courts, unless by leave of the judge on cause shown. 



The cases in which bail may still be received in civil actions in 

 Scotland are those in which the debtor may be arrested on foreign 

 warrant or flight warrant. Foreign warrants are of two kinds, usually 

 called buryh warrants and border warrants. Of all these, the burgh 

 warrant appears the most ancient, and from it the others are perhaps 

 derived. It seems also to have a common origin with the foreign 

 attachment of London, Bristol, and other towns of England. 



The burgh warrant is a burghal or civic proceeding directed against 

 non-resident debtors. It appears as early as the reign of King David II., 

 by cap. 36 of whose laws it was enacted, that if any stranger take up 

 goods or necessaries within burgh, and offer to go away leaving the 

 same unpaid, he shall be attached and detained by public warrant. At 

 length, after various determinations of the courts on the subject, which 

 it is not necessary here to detail, the Act 1672, c. 8, was passed, by 

 which the custom is now regulated. The following particulars may 

 thence be gathered : The privilege is limited to royal burghs, and 

 to book debts for man's meat, horse meat, and other merchandise 

 due by a stranger to an inhabitant burgess, the plaintiff being the 

 merchant, innkeeper, or stabler from whom the same was gotten, and 

 to whom it was originally addebted, and having no bond from the 

 stranger nor any other security except his own compt-book ; and tha 

 remedy is arrest and imprisonment of the stranger, by warrant of the 

 magistrates, till he find caution judicio sisti in any process to be. brought 

 for payment of the debt within six mouths. Horder inarrants are 

 granted, on application to any judge ordinary, on the borders between 

 England and Scotland, against debtors whose domicile is on the opposite 

 side, for arresting them till they find like caution judicio stsli. To 

 obtain a flight warrant, fu'jcf warrant, or warrant against a debtor as < 

 meditatiune fugue, a petition is presented to any judge ordinary by the 

 creditor, stating his debt, and his information and belief that the 

 debtor is about to flee the kingdom without paying the same, and 

 praying warrant to bring him before the court for examination. With 



