9 ; 30 Miss. 673 ; 16 Mass. 423 ; 8 B. Monr. Ky. 3.
For any crime or offence against the United States, not punishable by death, any justice or judge of the United States, or any chan cellor, judge of the supreme or superior court, or first judge of any court of common pleas, or mayor of any city of any state, or any justice of the peace or magistrate of any state, where the offender may be found, may take bail, Act Sept. 24, 1789, 33, Mar. 2, 1793, 4, and, after commitment by a justice of the supreme or judge of district court of the United States, any judge of the su preme or superior court of any state (there being no judge of the United States in the district to take such bail) may admit the per son to bail if he offer it.
When the punishment by the laws of the United States is death, bail can be taken only by the supreme or circuit court, or by a judge of the district court of the United States.
As to the principle on bail is granted or refused in cases of capital Offences in the Queen's Bench, see 1 Ell. & B. 1, 8; Dearsl. Cr. Cas. 51, 60.
7. The proceedings attendant on giving bail are substantially the same in England and all the states of the United States. An appli cation is made to the proper officer, 4 Rand. Va. 498, and the bond or the names of the bail proposed filed in the proper office, and notice is given to the opposite party, who must except within a limited time, or the bail jus tify and are approved. If exception is taken, notice is given, a hearing takes place, the bail must justify, and will then be approved unless the other party oppose successfully; in which case other bail must be added or sub stituted. A formal application is, in many cases, dispensed with, but a notification is given at the time of filing to the opposite party, and, unless exceptions are made and notice given within a limited time, the bail justify and are approved. If the sum in which the defend ant is held is too large, he may apply for miti gation of bail.
The bail are said to enter into a recog nizance when the obligation is one of record, which it is when government or the defend ant is the obligee ; when the sheriff is the obligee, it is called a bail bond. See BAIL
BOND ; RECOGNIZANCE.
S. Mitigation of excessive bail may be ob tained by simple application to the court, 13 Johns. N. Y. 425 ; 1 Wend. N. Y. 107 ; 3 Yeates, Penn. 83; and in other modes. 17 Mass. 116; 1 N. H. 374. Exacting excessive bail is against the constitution of the United States, and was a misdemeanor at common law. U. S. Const. Amend. art. 8; 1 Brev. So. C. 14.
The liability of bail is limited by the bond, 9 Pet. 329 ; 2 Va. Cas. 334; 5 Watts, Penn. 539 ; 2 N. J. 533 ; by the ac etiam, 1 Cow. N. Y. 601; see 5 Conn. 588; 5 Watts, Penn. 539; by the amount for which judgment is ren dered, 2 Speers, So. C. 664 ; and special cir cumstances in some cases. 1 Nott & M'C. So. C. 64; 1 M'Cord, So. C. 128; 4 id. 315 ; 2 Hill, So. C. 336. And see BAIL. BOND; RECOG NIZANCE.
9. The powers of the bail over the defend ant are very extensive. As they are sup posed to have the custody of the defendant they may, when armed with the bail piece, arrest him, though out of the jurisdiction of the court where they became bail, and in a different state, 1 Baldw. C. C. 578; 3 Conn. 84, 421; 8 Pick. Mass. 138 ; 7 Johns. N. Y. 145 ; may take him while attending court as a suitor, or at any time, even on Sunday, 4 Yeates, Pa. 123; 4 Conn. 170; may break open a door if necessary, 7 Johns. N. Y.145; 4 Conn. 166; may command the assistance of the sheriff and his officers, 8 Pick. Mass. 138 , and may depute their power to others. 3 Harr. N. J. 568.
To refuse or delay to bail any person is an offence against the liberty of the subject, both at common law and by statutes, but does not entitle the person refused to an action unless malice be shown. 4 Q. B. 468; 13 id. 240; 1 N. II. 374.
In Canadian Law. A lease. See Mer lin, Repert.
Bail entphyteotique. A lease for years, with a right to prolong indefinitely. 5 Low. C. 351. It is equivalent to an alienation. 6 Low. C. 58.