Besides these arrangements of the common law with regard to B., we may mention two other forma of in .error. and in attachment. The former is regulated• by the common laW,procedure act (1S52j, 15 and 16 Viet., e. 76, by section which it is, provided that proceedings in error shall not stay or delay execution on a judgment,,unless the person or, pleading. such error shall be bound,',along,with two sureties, in double the sum recovered' by the Indztrient, in order to prosecute the proceed-, ings in error with'effect,''tind make payment of the casts, in the event of the judgment; being affirmed, or the proceedings in:error being:discontinued. 13:in attachment, again, signifies the sureties required for al)irty a writ ef'attnehment, and brought' up before a judge' in order to obtain his discharge from cuitodY, the sureties undertaking that he shall appear and answer such interrogatories as may be required of him. This: however, only applies to attachtnefit in the ease contempt of court; ior it would appear that an attacinnent for tile non-payment of money, or the non-performance of an award: is not bailable. In the court of chancery, also, there are rules for accepting B.; as, for instance, for a defendant against whom attachment. has issued for his contempt in not making a appearance to plaintiff's'' but 'an attachment for non-performance of a i decree in chancery is not process.' " In criminal procedure; the subject of B. is at present regulated by" he 11 and 12 Viet. c. 42, which provides that if the justice or justices, before whom a prisoner is brought; shall be of opinion that the evidence against the prisoner be sufficient, or even if it raise a strong or probable presumption of his guilt, they shall either commit him to prison, or admit him to B.—that is, allow him to be discharged on entering into a reeognizanco with some sufficient surety or sureties--to appear and surrender himself to Custody, to take his trial on such indictment as may be found against him, in respect of the charge in question, at the next assizes or sessions of the peace. The crime of treason, however, is net a bailable offense, except by order of a secretary of state, or by the court of queen's bench, or by a judge thereof in vacation. But justices are bound to admit to B. in all ca.sea of misdemeanor, excepting in the case of a misdemeanor in receiving prop; erty stolen or obtained• by false-ir or the case•ef..any miiicleineanor for the ,prosecution of which the costs may be allowed out of the county rate, as to all which misdemeanors, as well as in all felonies—treason excepted—justices and magistrates have a discretionary power either to admit to B. or to commit to prison. The court of queen's
bench exercises a paramount jurisdiction, and can bail in all eases whatsoever; but it is not usual for that court or for justices or magistrates to admit to B. in any case of felony, except under circumstances of a special and favorable kind.
In Scotland. the term B., as we have mentioned, is only used 'in the proceedings in the criminal courts; and there the general distinction is taken between offenses that are capital and not capital, the former not being bailable except by order of the high court of justiciary, who exercise a power in this respect analogous to the jurisdiction of the court of queen's bench; offenses that are not capital being bailable by magistrates, sheriffs, or other competent judges. In the cira process of the Scotch courts, the term corresponding to B. IS CAUTION (q.v.).
BAIL (ante) in the tuited States is substantially the same as in England. One who becomes surety for another is his B. "B. above" are sureties who agree either to satisfy the plaintiff as to'his claims and costs, or 'in case of judgment against a defendant, to deliver him up. " B. below" are sureties for the defendant's appearance, or that he will give bail. "-Civil B." is taken in civil actions; "common B." amounts to entering an appearance when fictitious sureties are named ; "special B." applies to cases in which there are responsible sureties. B. may be given in all cases of arrest in civil action. It is a gen eral rule that a person held to B. in a civil case cannot be held a second time for the same cause of action, unless in another state. In criminal cases, except capital crimes, the defendant may generally be admitted to B., and even in the higher crimes B. may be accepted in the discretion of the court, or in the absence of legal provision to the con trary. In any case of offense against the nation; not punishable with death, any United States judge or state judicial officer may take B.; but if the-punishment be death, only a United States judge can decide upon B. The form of entering B,is the same in the sev eral states as in England. Mitigation of excessive B. is usually obtained by application to the court; and the exaction of such B. is 'forbidden by the federal constitution. The power of sureties over the person bailed is wide. They are technically his jailers, and may arrest him anywhere, or at any time, even on Sunday, or in the attendance at court; they may command assistance, and may depute their power to another. Refusing or delaying B. is an offense against personal liberty, but is not actionable unless malice can be shown. Sureties must in most cases be citizens and freeholders, or possessed of means that will satisfy the court.