- : 



BAH 



n.UI.VKNT 



thi petition the creditor produces hi* vouchon of debt. He must abo 

 make u affldavit of hi. debt. ud of hi. belief that the debtor means 

 to abscond. and of the faots on wfcich such belief is founded. If the 

 iliimiusUiiiiss are snmcient, the magistrate or judge then issues his 

 warrant to bring the debtor before him for examination. If, after due 

 inquiry, it appear that the debtor U about to flee the kingdom to 

 defraud hi* creditor, warrant if granted in term* of the application, to 

 sis* and imprison hint till he find caution jmlirio ritti. 



Tbe Scotch law of bail in cam of crime U abut up within a narrow 

 compass, it being almost altogether contained in the Acts 1701, c. 6, 

 and 89 Oeo. III. c. 49. By the former, all capital crimes are made 

 bailable, It mar be remarked, that although capital aentenoe is not, 

 nor, under) the form, of . Scottish law a> now in practice, can be pro- 

 nounced by a judge in the caae of any Crimea except murder and high 

 treason, yet many of the more heinous offences, as robbery, rape, aggra- 

 vated theft, anon, Ac., are still by statute capital, and are consequently 

 not bailable of right. (ParL Papers. Seas. 1855, No. 419.) But the 

 chief criminal court, or the lord advocate, as public proeecutor, may 

 admit to bail even in capital cases. (Alison's Crim. Prac., 163, 166.) 



In all except capital caees the accused U entitled to be admitted to 

 bail on application to the judge committing or other judge having 

 jurisdiction. By 39 Oeo. III. c. 49, the bail is not to exceed 1200/. for 

 a nobleman, 9001. tar a landed gentleman, 300/. for any other gentle- 

 man, burgeas, or householder, and 601. for an inferior person. 



BAILEY, or BAILLIE. 



BAILIFF signifies a keeper or superintendent, and is derived by us 

 from the French word 6ai7/t, which appears to come from balliriu, and 

 that from kayalttt, the Latin word signifying generally a governor, 

 tutr, or superintendent, and also designating an officer at Constanti- 

 nople who had the education and care of the Greek emperor's sons. 

 (Du Cange, ' Glossary.') All the various officers who are called by this 

 name, though differing as to the nature of their employment*, seem to 

 have some kind of keeping or superintendence intrusted to them by 

 their superior. The sheriff is called the queen's bailiff, and his county 

 is hia bailiwick. The keeper of Dover Castle U called the bailiff ; and 

 the chief magistrates of many ancient corporations in England have 

 this name. But the chief functionaries to whom the name is applied, 

 are the bailiffs of sheriffs, the bailiffs of liberties or franchises, and the 

 bailiffs of lords of manors. 



1. Bailifi of Atrifi were anciently appointed in every hundred, to 

 execute all process directed to the sheriff, to collect the king's fines and 

 fee-farm rents, and to attend the justices of assize and gaol delivery : 

 they are called in the old books bailifft errant. There in now a certain 

 number of bailiffs appointed by the sheriff in hia county or bailiwick, 

 who, from their entering into a bond to the sheriff in a considerable 

 penalty for their due and proper execution of all process which the 

 sheriff intrust/! them to execute, " are called bound bailiffs, which (says 

 Blackstone) the common people have corrupted into a much more 

 homely appellation." These are called common bailiffs ; but the sheriff 

 may, and often does, at the request of the suitor or otherwise, intrust 

 the execution of process to a person named merely pro hdc vitt, who is 

 called a tptrial bailiff, and for whose acts the sheriff is not liable to the 

 party obtaining him employment. The bailiff derives his authority 

 from a warrant under the hand and seal of the sheriff; and he cannot 

 lawfully arrest a party till he receives such warrant. It is a contempt 

 of the court from which process issues, to hinder the bailiff in exe- 

 cuting it ; and when a party is taken by the bailiff, the law considers 

 him in the custody of the sheriff. An arrest may be made by the 

 bailiff's follower ; but the bailiff must in such case be at hand and 

 acting in the arrest. If a bailiff misdemean himself grossly in the 

 execution of process, w if he use unnecessary violence or force, or 

 ext rt money from prisoners, of embezzle money levied, he will be 



iiod by attachment from the court from whence the process 

 i 



2. TTit lailif of tt franeJute or liberty is one who has the same 

 authority granted to him by the lord of a liberty as the sheriff's bailif 

 anciently had bj the sheriff. These liberties are exclusive jurisdictions 

 which still exist in some parts of the kingdom (as the honour of Ponte 

 fract in Yorkshire, the liberty of Gower in Gloucestershire, and adjoin 

 ing counties,) in which the king's writ could not formerly be executec 

 by the sheriff, but only by the lord of the franchise or his bailiff 

 These districts proving inconvenient, the Statute of Westminster the 

 Second, c. 29. provided, that if the bailiff, when commanded to execute 

 a writ within the franchise, gave no answer, a writ, with a clause o 

 non omitlat, should issue, authorising and commanding the sheriff to 

 enter the franchise and execute the writ ; and it has long been the 

 practice in every case to insert this clause in the writ, in the firs 

 fawUoce, which enables the sheriff at once to execute it in the 

 franchise. 



3. Bailif i of manor* are stewards or agents appointed by the Ion 

 (generally by an authority under seal) to superintend the manor 

 collect fine* and quit-rents ; inspect the buildingn ; order repairs ; cut 

 down trees ; impound cattle trespassing ; take an account of wastes 

 spoils, and misdemeanors in the woods and demesne lands ; and do 

 other act* for the lord's interest Such a bailiff can bind the lord by 

 acts which are for his benefit, but not by such as are to his prejudice 

 without the lord's special authority. 



(Bacon's Abri'lyrmnl, tit. Bailiff.) 



BAILIWICK, from the French bailli. and the Saxon >ic (rietu\. the 

 street, dwelling place, or district of the bailiff, signifies either a county 

 which is the bailiwick of the sheriff, as bailiff of the king, and within 

 which his jurisdiction and his authority to execute process extend ; or 

 t signifies the particular liberty or franchise of some lord who has an 

 exclusive authority within iU limita to act as the sheriff does within 

 the county. [lUn.irr; SnERirr; BAIL.] 



I'. V I I.I.I AGE. a French term equivalent with bailiwick, a district nr 

 ortiun of territory under the jurisdiction of an officer called a bailiff. 

 This term was more especially appropriated to certain sub-govern- 

 ments of Switzerland, which at the time Coxe wrote his travels were 

 of two sorts : the one consisting of certain districts into which all the 

 aristocratic*! cantons were divided, and over which a particular officer 

 called a bailiff was appointed by the government, to which he was 

 accountable for his administration ; the other composed of territories 

 which did not belong to the cantons, but were subject to two or more 

 of them, who by turns appointed a bailiff. The officer of this last 

 sort i { bailliage, when not restrained by the peculiar privilegesof certain 

 districts, had the care of the police, and under limitation the juris- 

 diction in civil and criminal causes. He also enjoyed a stated r 

 arising in different places from various duties and taxes. In case of 

 exaction or mal-administration an appeal lay to the cantons to which 

 the particular bailliage belonged. (Coxe's ' Trav. in Switz.,' 4to, Lond., 

 1771.) The latter bailliages anciently formed part of the Milanese. 

 They have been formed since into the canton of Ticino. [Ticixo, in 

 GKOO. Div.] 



BAILMENT, in law, is a term derived from the French word baitter, to 

 deliver, and may be defined to be " a delivery of goods for a particular 

 purpose, upon a contract, express or implied, that the purpose shall be 

 carried into effect, and that, when that is done, the goods shall be restored, 

 by the bailee or person to whom they are delivered, to the owner or 

 bailor, or, according to his directions." The degree of responsibility 

 which attaches to a person who receives goods or other property 

 belonging to another, depends entirely upon the circumstances of the 

 delivery ; and as those circumstances are infinitely varied, the subject 

 is one of considerable nicety ; while its connection with the trans- 

 actions of commerce and the daily occurrences of life renders it of 

 great practical importance. 



The whole English law of bailment rests upon the Roman law, from 

 which it derives not only its doctrines but its technical terms. In this 

 article it will lj sufficient to enumerate the general rules which have 

 been established by the law of England respecting bailment ; under 

 some one of which the cases which ordinarily occur in practice are in 

 general comprehended. The most convenient and accurate method of 

 classifying the different species of bailments is that suggested by Sir 

 William Jones, in his ' Essay on the Law of Bailments ; ' we shall 

 follow his arrangement of the subject, using the Latin names which 

 are common to the English and Roman law. 



I. Depotitum is a mere delivery or simple deposit of goods to be 

 kept by the bailee for the bailor without remuneration. In cases of 

 this kind, the main obligation imposed upon the bailee is faithfully 

 to return the goods upon demand ; and he is not liable for the loss or 

 injury of the property deposited with him, unless it has been occa- 

 sioned by wilful abuse, or gross negligence. In the Roman law, gross 

 negligence was denominated magna, or lata rulpa, and was held to be 

 presumptive evidence of fraud, when applied to cases of trust. And 

 the same principle is adopted by Lord Holt in the case of Cooyi v. 

 Bernard (2 Lord Raymond, 918) ; but, according to the more recent 

 authorities on this subject, gross negligence, although it may be evidence 

 of mala fide*, is not identical with it. (Goodman v. Harvey, 4 A. & E. 

 870, 876.) The measure of diligence required from the bailee in cases 

 of mere deposit, or, as they are sometimes called, general bailments, 

 is that which a prudent man would use in hia own affairs. If, for 

 instance, hia house is on fire and he saves his own goods, leaving 

 those deposited to be burned, though he had time and power to save 

 both, he will be bound to restore the value to the owner ; if , on the other 

 hand, he is only able to save one of them, he is at liberty to prefer his 

 own, unless the deposited property be obviously of much greater value; 

 in which case it is said that the bailee ought to save it, and that he 

 may then claim indemnification from the depositor for his own loss. 

 But there is no rule in our law to the effect, that if a gratuitous bailee 

 keep the goods as he keeps his own, he is not answerable for loss or 

 damage, however careless or negligent he may be. There arc, indeed, 

 some expressions in the judgment of Lord Holt, in the case of Oogft v. 

 Bernard, from which it may be collected that this was his <>i 

 But the modern cases show that such a bailee may be guilty of gross 

 negligence, although he may have kept the goods entrusted i 

 with as much care as he kept his own ; and that if he be guilty of gross 

 negligence, the negligent t his own goods will bo no defence. 



(Dooman v. JrnHnu, 2 A. ,V I 



II. .\fantliilum, or commission, is a delivery of goods for the pur- 

 pose of having them carried from one place to another, or of having 

 some act performed upon them, for which sen-ice the bailee is to 

 receive no reward or payment, and from which the depositor nl 

 to derive benefit. The distinction between this kind of bailment and 

 a mere deposit, is that the former implies some act to be done by 

 the bailee, whereas the latter simply relates to custody. Hence 

 arises a difference in the nature of the duty imposed, which is not 



