BAIL is a technical term in the practice of the law both in England and Scotland. with this difference, find, in England, it is used both in civil and criminal procedure, whereas in Scotland it is applied exclusively to the latter. By B. is understood the security given by sufficient sureties for the appearance in court on a day, and at a place certain, of a person arrested or imprisoned, and who, in consequence of such security or B., is in the meantime set at liberty, Such security, however, involves the assumption of the custody of the arrested or imprisoned party by his B., the meaning of the rule beino. that the party arrested or imprisoned is delivered into the hands of those who bind themselves for his forthcoming, in order that lie may be protected from prison until he has to make his personal appearance: and in this sense, it differed from the old term, mainprize, now obsolete, and which signified a mere security without any other or corresponding guarantee, as in the case of bail. A technical and necessary distinctiox is taken in law-books between what is called common B., or B. to render to prison, and spe cial B., or B. to the action; but for general information, the following statement of the law may suffice.
In civil process, the sureties give their bail-bond to the sheriff himself for the appear ance of the defendant; according to the exigency of the case, and for nothing else. It does not appear that any particular or limited number of sureties is to be taken; but it would seem that the sheriff may insist on more than two, provided they have only suffi cient property within the county to answer the penalty; but if more than two be tendered, it is not necessary that each should be worth the full amount. On time other hand, the bail-bond will be good though there be only one surety; but in accepting such security it would seem that the sheriff does So at his own risk. If there is reasonable ground for believing the sureties to be sufficient, the sheriff has no discretion, but is bound to accept the B.; and if he refuses to do so, lie is liable to an action.
The necessity of B., however, may be avoided by the defendant availing himself of the provisions of statutes which are re-enactments of older laws, by which, it is enacted that the arrested or imprisoned party may obtain his immediate discharge by depositing with the sheriff the sum demanded by the plaintiff, together with £10 towards the cost, the same to remain in court to abide the event of the suit. The enactment,
however, contains a proviso that it shall be lawful. for a defendant who has made such deposit in payment, at any time in the progress of the cause, before issue joined, or final or interlocutory judgment, to receive out of court the sum so deposited and paid, upon putting in and perfecting special B., and paying such costs as the court shall direct; and, by another enactment of the same statute, provision is made for the case where a defendant who has put in B., afterwards elects to depositthe plaintiff's demand, and to pay the costs to abide the event of the action.
As to those who may or may not be B., it would appear, from the nature of the security undertaken, that persons privileged from arrest cannot be B., because the engage ment on the part of the B. being, in default of the principal party, to pay the debt or damages and costs, the plaintiff is entitled to require the security of persons who aro amenable to the ordinary process of the courts. Therefore; peers, members of parlia-" liament, ambassadors, and other privileged persons, cannot become B.; nor, generally, can attorneys or those employed in executing the process. But persons who are not in such a position, but who are either housekeepers or freeholders, may be taken as 11.. The possession of leasehold property is not enough, unless the party isralso a housekeeper; but the real owner of a freehold estate, however small it may he, situated within the jurisdiction of the court, and provided he can otherwise make up the amount required,: is qualified, though be be only a lodger, or meraly an occupant by sufferance in the house of another. Again, to constitute a "housekeeper," within the meaning of the rule, the house must be within the jurisdiction of the court, and such a party must be the bond fide tenant of the in his own right, enjoying its benefits and bearing its burdens. A. person, therefore, in lodgings in England, but with a house in Scotland, is not admissible as B.; and must strictly in . this sense be a houaekeefier. B. has ceased to be usual since unprisoninent for debt was abolished.