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touching the venue in civil cases to be tried within any division of to divide the the said county, and the liability and attendance of jurors, whether county for that special or common, at the court to be held within any such division, purpose. and touching the alterations of commissions, writs, precepts, or other proceedings for carrying into effect the purposes of this act, and touching any other matter that may be requisite for carrying into effect the purposes of this act; and all such rules and regulations shall be of the like force and effect as if the same had been

made by the authority of parliament, and shall be notified in the London Gazette, or in such other manner as his majesty shall think fit."

THIS word, as a law term, we have immediately from the French

attacher, to tye, or make fast. The Italian word is attacare; the Spanish attacar; and the Saxon tæcan, to take.

It signifieth the taking of a man's body by commandment of Definition. a writ or precept; and is properly grantable in cases of contempts, against which for the most part all courts of record generally, but more especially those of Westminster Hall, and above all, the court of King's Bench, may proceed in a summary manner, according to their discretion.2 Haw. c. 22. $1. 4 Blac. Com. 284.

In the case of R. v. Bartlett, 2 Sess. Cas. 176., it is said that Power of generally the sessions have not a power to award an attachment: sessions. but the Court said, they would not determine how it would have been, if they had committed the person for contempt; but the ordinary and proper method is by indictment.

When an order, however, is confirmed by the court above, an attachment lies for non-performance of it; and therefore the court will not take security of the party for performance of it. Q. v. Chaffey, 2 Ld. Raym. 858. i Boit. 472.


[Stat. 54 G. 3. c. 145. 3 & 4 W. 4. c. 106.] THE difference between a man attainted and convicted is, that a

man is said to be convicted before he hath judgment, as if a man be convicted by verdict or confession, and when he hath his judgment upon the verdict or confession, then he is said to be attainted. i Inst. 390. b.

That is to say, his blood is become (attinctus) tainted, stained, or Corruption of corrupted; insomuch that by the common law, in cases of treason blood." or felony, his children or other kindred cannot inherit his estate, nor his wife claim her dower; and the same cannot be restored or saved, but by act of parliament; and therefore, in divers instances, there is a special provision by act of parliament that such or such an attainder shall not work corruption of blood, loss of dower, nor disherison of heirs. 1 Inst. 391. b.

54 G. 3. c.145. By stat. 54 G. 3. c. 145., intituled “ An act to take away corrupLimiting cor

tion of blood save in certain cases,” it is enacted, that no attainder ruption of blood to certain cases.

for felony which shall take place from and after the passing of this act, save and except in cases of the crime of high treason, or of the crimes of petit-treason or murder, or of abetting, procuring, or counselling the same, shall extend to the disinheriting of any heir, nor to the prejudice of the right or title of any person or persons other than the right or title of the offender or offenders during his, her, or their natural lives only ; and that it shall be lawful to every person or persons to whom the right or interest of any lands, tenements, or hereditaments, after the death of any such offender or offenders, should or might have appertained if no such attainder

had been, to enter into the same. 9 & 4 W. 4. By 3 & 4 W. 4. c. 106. $ 10., when the person from whom the

descent of any land is to be traced shall have had any relation,

who, having been attainted, shall have died before such descent allowed through shall have taken place, then such attainder shall not prevent any attainted person, who has died. person from inheriting such land who would have been capable of

inheriting the same by tracing his descent through such relation if he had not been attainted, unless such land shall have escheated in consequence of such attainder before Jan. 1., 1834.

By $ 11., this act shall not extend to any descent which shall take place on the death of any person, who shall die before Jan. 1., 1834.

c. 106. Descent

attaint. See title Jurors.


'I. What it is.
II. Difference between Bail and Mainprize.
III. Who may or may not be bailed, and in what manner.

[7 G.4. c. 64.]
IV. Requiring excessive Bail.

[1 W. & M. sess. 2. c. 2.]
V. Denying Bail where it ought to be granted.
VI. Granting Bail where it ought to be denied.
VII. Of Bail by Writ of habeas corpus.

(31 C. 2. c. 2. — 43 G.3. c. 140. — 44 G. 3. c. 102.

56 G.3. c. 100.]
VIII. Acknowledging Bail in another Man's Name.

(1 W. 4. c. 66.]

I. Uwhat it is.

BAIL (from the French bailler, to deliver) signifies the delivery

of a man out of custody, upon the undertaking of one or more persons for him, that he shall appear at a day limited, to answer and be justified by the law. 1 Hale's Sum. 96.

II. Difference between Bail and painprize. The difference between bail and mainprize is, that mainpernors are only surety, but bail is a custody; and therefore the bail may retake the prisoner, if they doubt he will fly, and detain him, and bring him before a justice, and the justice ought to commit the prisoner in discharge of the bail, or put him to find new sureties. i Hale's Sum. 96. III. who may or may not be bailed, and in what


[7 G.4. c. 64.) By the ancient law of the land, in all cases of felony, if the Bail at comparty accused could find sufficient sureties, he was not to be com- mon law. mitted to prison ; but afterwards it was provided by parliament that in case of homicide and certain other felonies the offender was not bailable. 2 Inst. 186. 4 Bl. Comm. 298.

By 7 G. 4. c. 64., which repeals the 3 Edw. 1. c. 15. and 1 & 2 7 G. 4. c. 64. Ph. & M. c. 13., the law respecting the taking of bail on charges Strong preof felony is now regulated." \ 1. enacts, that where any person sumption of shall be taken on a charge of felony, or suspicion of felony, before guilt. one or more justices of the peace, and the charge shall be supported by positive and credible evidence of the fact, or by such evidence as, if not explained or contradicted, shall, in the opinion of the justice or justices, raise a strong presumption of the guilt of the person charged, such person shall be committed to prison in the manner herein-after mentioned ; but if there shall be only one justice present, and the whole evidence given before him shall be such as neither to raise a strong presumption of guilt, nor to warrant the Evidence which dismissal of the charge, such justice shall order the person charged neither raises to be detained in custody until taken before two justices at the strong preleast; and where any person so taken, or any person, in the first sumption nor instance, taken before two justices of the peace, shall be charged missal of with felony, or on suspicion of felony, and the evidence given in charge. support of the charge shall, in their opinion, not be such as to raise a strong presumption of the guilt of the person charged, and to require his or her committal, or such evidence shall be adduced on behalf of the person charged as shall, in their opinion, weaken the presumption of his or her guilt, but there shall notwithstanding appear to them, in either of such cases, to be sufficient ground for judicial inquiry into his or her guilt, the person charged shall Bail in felony, be admitted to bail by such two justices, in the manner herein-after two justices mentioned; provided always, that nothing herein contained shall necessary. be construed to require any such justice or justices to hear Not imperative evidence on behalf of any person so charged as aforesaid, unless hear evidence it shall appear to him or them to be meet and conducive to the on behalf of the ends of justice to hear the same.

party charged. 2. The two justices of the peace before they shall admit to Examination bail, and the justice or justices before he or they shall commit to and information

to be taken in prison any person arrested for felony, or on suspicion of felony,

writing. shall take the examination of such person, and the information, upon oath, of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as shall





to such pro

Bailment to be be material, into writing ; and the two justices shall certify such certified in bailment in writing; and every such justice shall have authority writing to bind by recognizance all such persons as know or declare any

thing material touching any such felony or suspicion of felony, to Authority to appear at the next court of oyer and terminer, or gaol delivery, bind by recog

or superior criminal court of a county palatine, or great session or nizance.

sessions of the peace at which the trial thereof is intended to be,

then and there to prosecute or give evidence against the party Justices to sub- accused; and such justices and justice respectively shall subscribe scribe the bail- all such examinations, informations, bailments, and recognizances, ment, &c.

and deliver or cause the same to be delivered to the proper officer Depositions,

of the court in which the trial is to be, before or at the opening bailments, &c.

of the court. to be returned to officer of court.

§ 3. requires the examination and information in cases of So, in misde. misdemeanor to be taken in writing by the justice, and directs that

he shall subscribe all examinations, informations, bailments, and recognizances, and return them to the proper officer of the court,

in like manner as in cases of felony. So, as to coro- $ 4. contains an enactment to the like effect in regard to

inquisitions taken before coroners. Justice, &c. § 5. If any justice or coroner shall offend in any thing contrary acting contrary to the true intent and meaning of these provisions, the court to visions may be

whose officer any such examination, information, evidence, bailfined.

ment, recognizance, or inquisition ought to have been delivered shall, upon examination and proof of the offence, in a summary manner, set such fine upon every such justice or coroner as the court shall think meet.

It is to be observed, that the provisions of the above statute in regard to taking bail, apply only to the case of prisoners brought

before magistrates on a charge of felony. Insufficient

If a person who has power to take bail be so far imposed upon bail.

as to suffer a prisoner to be bailed by insufficient persons, it is said, that either he, or any other person who hath power to bail him, may require the party to find better sureties, and to enter into a new recognizance with them, and may commit him on his refusal ; for that insufficient sureties are no sureties. 2 Haw.

c. 15. § 4. Bail may be And the person who is to take the bail may examine them examined on

on their oaths concerning their sufficiency. 2 Haw. c. 15. § 4. oath.

2 Hale, 125. Number of

No person ought, in any case, to be bailed for felony by less sureties and

than two; and it is said to be the practice of the K. B. not to admit any person to bail upon a habeas corpus, on a commitment for treason or felony without four sureties. The only sure way of proceeding in this case is to take care that every one of the bail be of ability sufficient to answer the sum in which they are bound, which ought never to be less than 401. for a capital crime, but may be as much higher as the justices in discretion shall think fit to require, upon consideration of the ability and quality of the prisoner, and the nature of the offence. 2 Haw.

c. 15. § 4. Special cases of There are furthermore many statutes which prohibit bail and imprisonment

mainprize in very many cases, and allow the same in many others, under particular which are interspersed among the several titles which treat of

those matters.


And where a statute ordaineth that an offender shall be imprisoned at the king's will or pleasure, there the prisoner cannot be bailed till be hath redeemed his liberty by such fine or ransom as shall be assessed by the king's justices in his courts. Dalt. c. 167. Pp. 294, 295.

And those who, on their examination, own themselves guilty of a felony alleged against them, and are charged in their mittimus with the felony so confessed, seem to be excluded from bail ; for bail is only proper where it stands indifferent whether the purty be guilty or innocent of the accusation against him. 2 Haw. c. 15. § 10.

Although a person be committed to be detained without bail or Commitment mainprize, yet, if the offence be by law bailable, he that hath without bail or power of bailing may bail him. 2 Hale, 135.

mainprize. It seems to be agreed that any one justice might always in his Bail in case of discretion either bail or imprison one who has given another a a dangerous dangerous wound, according as it shall appear from the whole wound. circumstances that the party is most likely to live or die ; for that every such justice being a principal conservator of the offence at present being only an enormous breach thereof, and no felony, seems properly to come under his conuisance. 2 Haw. c. 15. $54.

peace, the

IV. Requiring ercessive Bail. By the Declaration of Rights, stat. 1 W. & M. sess. 2. c. 2., excessive bail ought not to be required.

V. Denping Bail where it ought to be granted. To refuse bail where the party ought to be bailed (the party offering the same) is a misdemeanor, punishable not only by the suit of the party, but also by indictment. 2 Haw. c. 15. § 13. Hale's Sum. 97.

VI. Granting Bail where it ought to be denied. Admitting bail where it ought not is punishable by the judges of assize by fine; or punishable as a negligent escape at common law. Hale's Sum. 97.

A justice of Surrey committed a man on suspicion of stealing Information a mare, and bound over the owner to prosecute. Afterwards, granted against upon examining two other persons, he admitted the party to bail. a justice for The prosecutor appeared at the assizes, and found a bill; but the bailing a felon. party accused did not appear. And the court granted an information against the justice, declaring they should not have bailed the man themselves. K. v. Clarke, 2 Stra. 1216.

“ If any justice of the peace shall take bail where he ought not, or wittingly or willingly take insufficient bail, and the party appear not, the said justice not only to be proceeded against according to law, but likewise to be complained of to the lord chancellor, that he may be turned out of his commission.” 6th Order of the Judges to be observed by Justices of the Peace, O. B. 16 C. 2. From Kelyng's Reports, p. 3.

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