B A I 



the other hand, he is obliged, by flat. 23 Hen. VI. c. 10. 

 to take, if it he tendered, a fulficieiit bail-bond ; and by 

 ftat. 12 Geo. I. c. 29. the (heriff fliall take bail for no other 

 fum than fuch as is f«'orn to by the plaintiff, and endorfed 

 on the back of the writ. By rule M. 1654, no attorney 

 (hall be bail for a defendant in any aftion, nor his chrk. 

 Cowper, 228. n. But an attorney may he admitted as 

 bail in a criminal cafe. No (heriff's officer, bailiff, or otht-r 

 perfon concerned in the execution of procefs, fiiall be per- 

 mitted to be bail in any ailion or fuit depending in K. B. 

 nor pcrfons outlawed after judgment, R. M. 14 Geo. II. 

 Upon the return of the writ, or within four days after, the 

 defendant mull appear according to the exigency of the 

 writ. This appearance is efFcfted by putting in and juftifying 

 ha'il to the aS'ton ; which is commonly called ha'd uhove. If 

 this be not done, and the bail that were taken by the fherifF 

 below are refpotifible perfons, the plaintiff may take an aflign- 

 ment from the fheriff of the bail-bond (under the ftatnte 

 4 & 5 Ann. c. 16.), and bri;ig an action thereupon againll 

 the flieriff's bail. But if the bail fo accepted by the iheriff 

 be infolvent perfons, the plaintiff may proceed againft the 

 ftieriff himfelf, by calling upon him, iirft to return the writ, 

 if not already done, and afterwards to bring in the body of 

 the defendant ; and, if the (heriff does not then canfe fuf- 

 ficient bail to be put in and perfcdled above, he will himfelf 

 be refponfible to the plaintiff. 



The bull above, or bail to the aBlon, mufl be put in, either 

 in open court, or before one of the judges thereof ; or elle, 

 in the country, before a commiflioner appointed for that 

 purpofe by virtue of the ftatute 4 W. & M. c. 4. which 

 mull; be tranfmitted to the court. Thefe bail, who muil be 

 at leall two in number, muif enter into a recognizance in 

 court or before the judg; or commifTioner, in a fum equal 

 (or in fome cafes double), to that which the plaintiff has 

 fworn to ; whereby they do jointly and feverally undertake, 

 that if the defendant be condemned in the aftion, he (Iiall 

 pay the cods and condemnation, or render himfelf a prifoner, 

 or that they will pay it for him : which recognizance is 

 tranfmitted to the court in a (lip of parchment entitled a 

 ball-piece. And if e-sccpted to, the bail muft be perfccud, 

 that is, they xsm^ jvftify themfelves in court, or before the 

 commiffioner in the co'.intry, by fwearing themfelves houfe- 

 keepers, and each of them to be worth the full fum for 

 which they are bail, after payment of all their debts. See 

 Satisdatio. 



Special bail is required (as of courfe), only upon aftions 

 of debt, or aftions on the cafe in trover, or for money due, 

 where the plaintiff can fwear that the caufe of ailion amounts 

 to ten pounds : but in aftions where the damages are pre- 

 carious, being to be affeffed ad libitum by a jury, as in aftions 

 for words, ejeftment, or trefpafs, it is very feldom poflible 

 for a plaintiff to fwear to the amount of his caufe of 

 aftion ; and therefore no fpecial bail is taken thereon, uiilcfs 

 by a judge's order, or the particular directions of the court, 

 in fome peculiar fpeeies of itijuries, as in cafes of mayhem 

 or atrocious battery ; or upon fuch fpecial circumllances, 

 as make it abfoluttly neceffary that the defendant (hould be 

 kept within the reach of juflice. Alfo in aftions againff 

 heirs, executors, and adminiltrators, for debts of the deceafed, 

 fpecial bail is dcmandable ; for the aftion is not fo properly 

 againft them in perfon, as againff the effefts of the deceafed 

 in their poffeffion. But fpecial bail is required even of them, 

 in aftions for a devajlavit, or wafting the goods of the 

 deceafed; that wrong being of their own committing. 



In civil cafes every defendant is bailable ; but in criminal 

 matters it is otherwife. Bail may be taken either in court, 

 or in fome particular cafes by the fheriff, coroner, or other 



B A I 



magiftrate ; but mofl ufually by the judices of the peace. 

 Regularly in all offences, either againil the commoii law or 

 ait of parliament, that are below felony, the offender ought 

 to be admitted to bail, unlefs it be prohibited by fome 

 fpecial aft of parliament. By the ancient common lawr 

 before and fnice the conqueft (ilnft.189. Glanv. 1. xiv. 

 c. I.), all felonies were bailable, till murder was excepted 

 by ftatute ; fo that perfons might be admitted to bail before 

 convidtion almoft in every cafe. But the ftatute Weftm. i. 

 3 Edward I. c. 15. takes away the power of bailing in 

 treafon, and in divers inftances of felony. The ftatutes 

 23 Hen. VI. c. 9. and i & 2 Ph. & Mar. c. 13. give fur- 

 ther regulations in this matter ; and upon the whole we may 

 collect (2 Lift. 1S6. 2 Hal. P. C. 129), that no juftice of 

 the peace can bail, uport an accufation of treafon, of murder, 

 of manflaughter, it the perfon be clearly the flayer, and not 

 barely luipsiled to be fo, or it any indictment be found 

 againft him ; fuch, as being committed for felony, have 

 broken prifon , becaufe it not only carries a prefumption of 

 guilt, but is alfo fuperadding one felony to another ; perfons 

 outlawed ; fuch as have abjured the realm ; approvers, and 

 perfons by them accuied ; perfons taken with the mainour, 

 or in the faft of felony ; perlons charged with arfon ; and 

 excommunicated perfons, taken by wrif ^i? excommunicato ca- 

 piendo. Others are of a dubious nature, as thieves openly 

 defamed and known ; perfons charged with other felonies, 

 or manifeft and enormous offences, not being of good fame ; 

 and accefforics to felony, that labour niider the fame want 

 of reputation. Thefe fccm to be in the difcretion of the 

 juftlces, whether bailable or not. Thofe who muft be 

 bailed, on offering iufficierit fecurity, are perfons of good 

 fame, charged with a bare fufpicion of manflaughter, or 

 other inferior homicide ; fuch perfons, cliarged with petit 

 larceny, or any felony, not before fpecified ; or with being 

 acceffory to any felony. Laftly, it is agreed, that the court 

 of king's bench, or any judge thereof in time of vacation, 

 may bail for any crime whatfoever, be it treafon, murder, 

 or any other offence, according to the circumftanccs of the 

 cafe ; fuch perfons only excepted, who are com.mitted by 

 either houfe of parliament during the feffion, or fuch as are 

 committed fr contempts by any of tiie king's fuperior 

 courts of juftice. The refufal, or delay, of bail for anv 

 perfon bailable, is an offence againft the liberty of the fub- 

 jett in any magiftrate, by the common law, as well as by 

 the ftatute Weftm. 1.3. Edw. I. c. 15. and the habeas-corpus 

 aft, 31 Car. II. c. 2. And it is exprefsly declared by 

 ftatute I W. & M. ft. 2. c. I. that exccffive bail ought not 

 to be required ; though it is left with the courts to deter- 

 mine, on confidcring the clrcumftances of the cafe, what 

 bail (liall be called excefTive. On the other hand, if the 

 magiftrate take infufficient bail, he is liable to be fined, if 

 the criminal doth not appear. Blackft. Com. vol.iii. vol. iv. 

 For feveral circumftauces and confiderations with regard to 

 bail in civil cafes and in criminal matters, fee Jacob's Law 

 Dift. by Tomlyns, vol.i. Art. Bail. 



Bail above, or Bail to the ASiun, fucceeds the return 

 of the writ, or the appearance of the perfon bailed. See 

 Bail. 



Ytxw.-Bond, is a bond or obligation entered into by one 

 or more fureties, upon putting in bail to the fheriff, infur- 

 ing the defendant's appearance at the return of the writ. 

 -See Bail. 



Bail in Error, expreffes the bail given by a perfon who 

 brings a writ of error after verdift, or who is plaintiff in error. 



BAiL-P/fCf, a fmall fquare flip of parcliment, with the 

 corners cut off at the bottom, on which is the recognizance 

 of perfons who put in bail. See Bail, 



Bails, 



