B A I 



203 



B A I 



Bail, prosecution. And if the defendant does not appear 



"v ' upon the return of the writ, or within a short period 



after, the plaintiff may enter appearance for him, and 



file common bail in his name, as if the defendant had 



done so himseh. 



Common bail is taken only in actions of small con- 

 cernment. But in causes of greater weight, such as 

 actions upon band or specialty, &c. where the plain- 

 tiff makes affidavit, or asserts upon oath, that the 

 cause of action amounts to .10 or upwards, the de- 

 fendant must put in substantial sureties for his ap- 

 pearance, which is called special bail. And in such 

 cases it is required by statute 13 Car. II. st. 2. c. 2, 

 that the true cause of action should be expressed in 

 the body of the writ or process. 



Upon the return of the writ, or within four days 

 after, the defendant must appear, according to the 

 exigency of the writ. This is done by putting in 

 and justifying bail to the action; which is commonly 

 called putting in bail above. If this appearance be 

 not made, and the bail taken by the sheriff below are 

 responsible persons, the plaintiff may then take from 

 the sheriff an assignment of the bail-bond, and bring 

 an action against the sheriff's bail. And if the bail 

 accepted by the sheriff be insolvent persons, the 

 plaintiff may have recourse against the sheriff him- 

 self. 



The bail above, or bail to the action, must be put 

 in either in open court, or before one of the judges 

 of that court ; or, if in the country, before a com- 

 missioner appointed for that purpose, and transmitted 

 to the court. The bail, or sureties, to the number 

 of two, at least, must enter into a recognizance be- 

 fore the judge or commissioner, whereby they jointly 

 and severally undertake, that if the defendant be con- 

 demned in the action, he shall pay the costs and con- 

 demnation, or render himself a prisoner, or that he 

 will pay it for him : which recognizance is transmit- 

 ted to the court in a slip of parchment, entitled a 

 bail-piece. And the bail, if required, must justify 

 themselves in court, or before the commissioner in the 

 country, by swearing that they are housekeepers, and 

 each of them worth double the sum for which they 

 are bail, after paying all their debts. This practice 

 is in some degree analagous to the stipulatio or satis- 

 datio of the Roman law. Inst. 1. 4. t. 11. ff. 1. 2. 

 t. 8. 



Bull, in criminal cases, is taken in most offences 

 inferring an inferior degree of guilt ; but not in felo- 

 nies, and other capital crimes, because, in these cases, 

 no bail could be a security equivalent to the actual 

 custody of the offender's person. Both by the com- 

 mon and statutory laws, it is an offence against the 

 liberty of the subject, for any magistrate to refuse or 

 delay to bail any person bailable ; and it is expressly 

 declared, by statute 1W.&M. St. 2. c. 1, that exces- 

 sive bail ought not to be required : but it must be 

 left to the courts to determine, according to the cir- 

 cumstances of the case, what bail shall be called ex- 

 cessive. Bail may be taken either in court, or, in 

 some particular cases, by the sheriff, coroner, or other 

 magistrate, but most frequently by the justices of 

 the peace. 



Bail can be taken only where the imprisonment is 

 rbr safe custody, before conviction, and not from pri- 



soners already convicted. By the old common law, 

 all felonies were bailable, till murder was excepted by 

 statute ; so that persons might be admitted to bail, 

 before conviction, almost in every case. But the 

 power of bailing in treason, and in divers instances of 

 felony, has been taken away by sundry statutes. 



The offences not bailable, according to Sir Wil- 

 liam Blackstone, are : 1 . Treason ; 2. Murder j 



3. Manslaughter, if the prisoner be clearly the slayer. 



4. Persons committed for felony, who have broken 

 prison ; 5. Outlawed persons ; 6. Such as have ab- 

 jured the realm ; 7. Approvers, and persons by them 

 accused ; 8. Persons taken with the mainour, or in 

 the fact of felony ; 0. Persons charged with arson ; 

 10. Excommunicated persons, taken by writ de ex- 

 communicato capiendo. The following are of a du- 

 bious nature, and it seems to be left to the discretion 

 of the justices, whether they are bailable or not : 

 1. Thieves openly defamed and known ; 2. Persons 

 charged with other felonies, not being of good fame ; 

 3. Accessaries to felony, that labour under the same 

 want of reputation. The following must be bailed 

 upon offering sufficient surety : 1. Persons of good 

 fame, charged with a bare suspicion of manslaughter, 

 or other inferior homicide ; 2. Such person, charged 

 with petit larceny, or any felony not before specified; 

 or, 3. With being accessary to any felony. It is 

 agreed, however, that the court of King's Bench, or 

 any judge of that court in time of vacation, may bail 

 for any crime whatsoever, whether treason, murder, 

 or any other offence, according to the circumstances 

 of the case. See Blackst. Comment. Jacob's Law 

 Diet. (:) 



BAILIFF, (from the Lat. ballivus; Fr. baillif, 

 i. e. Prtefectus provincial,) signifies an officer ap- 

 pointed for the administration of justice within a cer- 

 tain district. The office, as well as the name, ap- 

 pears to have been derived by us from the French ; 

 and it is probable that our sheriffs of counties were 

 also anciently called bailiff's, as the county is still 

 often called balliva, or bailiwick. In the statute of 

 Magna Charta, c.28, and 14 Edw. III. c. 9, the word 

 bailiff would appear to comprehend sheriffs, as well 

 as bailiffs of hundreds. As the kingdom is divided 

 into counties, so every county is divided into hun- 

 dreds, within which, anciently, the people had jus- 

 tice administered to them by the several officers of 

 every hundred, who were the bailiffs. And it ap- 

 pears from Bracton, (lib. iii. tract. 2. cap. 34,) that 

 bailiffs of hundreds might anciently hold plea of ap- 

 peal and approvers. But these hundred courts, cer- 

 tain franchises excepted, have been, since that time, 

 swallcwed up by the county courts ; and the bailiff's 

 name and office is now grown into contempt, they 

 being, in general, merely officers or messengers em- 

 ployed to serve writs, &c. within their liberties. In 

 other respects, however, the name is still in good es- 

 teem ; the chief magistrates in many towns bring 

 called bailiffs: and sometimes the persons to whom 

 the care of the king's castles is committed, are termed 

 bailiffs ; as the Bailiff of Dover Castle, &c. 



The ordinary bailiffs are of several sorts. 



Bailiffs of Liberties, are those who are appointed 

 by every lord within his liberty, to execute processes, 

 &c. Bailiffs of liberties and franchises are to be 



Baitiif. 



