the head of that prince. The obverse has the head of Theodotus. The reverse has a naked figure of Jupiter erect, with his back to the spectator, and turned to the left; he is in the act of hurling his thunderbolt from his right arm raised, whilst his left arm extended bears the ægis: on one side, in the field of the coin, is a crown, and at the foot of the figure an eagle. The legend on each margin of the reverse is BAZIAENZ ALATT, perfectly distinct. The second coin is a silver tetradrachm, presented by Sir Alexander Burnes to the British Museum, where there are also many coins belonging to the other Greek kings of Bactria.

square

The bilingual class of Bactrian coins begins with Heliocles, who reigned about B.C. 147, but bilingual inscriptions are also found on the square copper coins of his predecessor Eucratides. The two languages are Greek and Prakrit, a Hindu dialect written with particular characters forming the Arian or Arianian alphabet. The oldest bilingual coins are all square, the barbaric inscriptions having been adopted together with the barbaric shape, but the later coins are both and round. Fourteen kings with Greek names are ascribed to this class, the last of whom is Pantaleon, who reigned about B.C. 120. The Greek letters on these coins are nail-headed; the design is generally good, on some very fine, and probably done by Greek artists; but there are also many of apparently barbaric execution, and in the whole the appearance of Eastern emblems of royalty, and different Indian animals and other figures, betrays the decline of Greek civilisation; and, in addition, the title Basileus is translated by Maharajasa. Among the animals, the elephant and elephant's head, which we find on the coins of Demetrius, Menander, Apollodotus, Lycias, and *The fourth letter of the name of Eucratides, which on the original coin is an I, was evidently intended for a P, and has probably been damaged a little; compare the P on the coin of Demetrius.

Heliocles, and the humped bull on the coins of Philoxenus, Diomedes, and several other kings, are supposed to indicate dominion in India. The wild horse, however, and the double-humped camel are believed to have exclusive reference to Bactria. Barbaric dynasties reigned over Bactria from the end of the second century before Christ.

The coins of the Scythic princes are exclusively of gold and silver, and bilingual-a proof that Greek civilisation, although on its decline, had still some influence upon the people, as was the case in Parthia under the Arsacidae. There are also many Sassanian coins found in Afghanistan; a fact by no means extraordinary, as the power of the Sassanians in Persia extended occasionally as far as the Indus, so that those Scythian kings were not always independent, but paid tribute to the Persians. The prince of Iskardo, in the upper valley of the Indus, pretends to be descended from Alexander. As the Greek power in Bactria was maintained in some parts of the Hindu Koosh after the Scythian conquest, the principality of Iskardo may be a remnant of the Bactro-Greek empire, and a closer investigation into the history of Iskardo and the whole upper valley of the Indus would perhaps lead to interesting results.

The obscurity prevailing in the history and chronology of Bactria has of course an influence upon Bactrian numismatics, and one cannot be surprised at seeing the principal writers on these subjects at variance on essential points.

(Wilson, Ariana Antiqua; Lassen, Zur Geschichte der Griechischen und Indo-Skythischen Könige in Bactrien, &c.; Grotefend, Die Münzen der Griechischen, Parthischen, und Indo-Skythischen Könige von Bactrien, &c.; H. T. Prinsep, Note on the Historical Results deducible from recent Discoveries in Afghanistan; James Prinsep, Essays on Indian Antiquities, Historic, Numismatic, and Palæographic, edited, with addit., notes, &c., by Edw. Thomas, 1858.)

BA'GNIO, a word derived from the Italian bagno, which means a bath, and also a bathing-house. It has been applied, by the Europeans trading with the Levant, to the prisons in which the slaves or convicts who are made to work in the docks and at other public works in Constantinople, Tunis, and other cities of Turkey or Barbary, are shut up for the night. The French likewise call bagne the house of detention, where they keep their galley-slaves, at Toulon and Brest. Bagnio, in English, has been used as synonymous with brothel.

BAGPIPE, a musical instrument of the pneumatic kind, still well known in Scotch regiments. It is described by Grassineau as consisting of a leathern bag, inflated by a port-vent fixed in it, which has a valve; and of three pipes, the first and the second called the great and the little drone, each giving but one note, the third, a kind of oboe, having eight ventages or holes, on which the tune is played by the fingers. The wind is communicated to the pipes by compressing the bag under the arm, the mouth piece of each pipe being fixed in the bag. The compass of this instrument is three octaves.

The bagpipe, or something nearly similar to it, was in use among the ancients. Blanchinus gives a figure of it under the name of tibia utricularis, though this is not precisely the same as the modern i strument. Luscinius, in his 'Musurgia' (1536), has a woodcut of it, whence it appears that the bagpipe in his time was in all respects the same as in ours. Indeed, it is mentioned, though not described, by Chaucer, who says of his miller

"A baggepipe wel coude he blowe and soune;

and this, we are told in the same prologue, was the music to which the Canterbury pilgrims performed their journey.

Bagpipe seems to be a translation of the German Sackpfeife. By the Italians it is called Cornamusa; by the French, Musette, not Chalumeau, as Dr. Burney states; the latter signifying a single pipe of the simplest kind.

BAHR, the Arabic word for the sea, a lake, or a large river, appears as a component part of many proper names in eastern geography: Bahr-alKolzum, the Sea of Kolzum,' that is, the Arabian Gulf, or Red Sea, especially its north-western extremity (the Sinus Heroopolites); Bahr Lat,' the Lake of Lot,' that is, the Lacus Asphaltites, or Dead Sea, in Syria; Bahr-al-Abiad, the White River,' and Bahr-al-Azrak, 'the Blue River,' that is, the two principal southern branches of the Nile. It has passed into the Portuguese language under the form Albufeira, 'a reservoir, a tank, a lagune;' and into Spanish under the two forms of Albufera and Albuhera, in the same sense. The prefixed al in these words is the Arabic definite article; and it is a general remark that the letter h of many Arabic words that have been received into the Spanish and Portuguese languages, has been changed into f.

BAIL, in civil causes, ordinarily signifies the sureties who become responsible for a defendant arrested by legal process while the cause is yet pending mesne process; and they are so called, because anciently the defendant was baillé, delivered or committed to the custody of his bail, who were bound to produce him at the time appointed for his appearance. By the statute of 23 Hen. VI. c. 9, the sheriff was compelled to admit to bail all persons arrested by him in any personal action, or because of any indictment of trespass, on reasonable sureties being offered for their appearance; and if he refused to take sufficient bail when offered, he was liable to an action by the party arrested. Bail were formerly either common bail or special bail, a distinction which arose thus: until the commencement of the last century, the defendant was in all cases of process against his

same reason, persons who have suffered their parents or near relations to receive parochial relief have been rejected. Foreigners cannot become bail merely in respect of property abroad which is beyond the court's jurisdiction; but it seems that British subjects may become bail in respect of property abroad belonging to such British subjects. The special bail, in order to justify, must be worth double the sum indorsed on the writ of capias, or if that exceed 1000%., then 1000%. in addition to it, over and above their just debts.

Special Bail.-In considering the subject of special bail, we shall explain: 1, in what cases and in what manner special bail are rendered necessary; 2, who may beceme special bail; 3, the mode of putting in bail and their justification; 4, the nature and extent of their liability; 5, the mode in which they may be discharged; 6, proceedings on the bail bond and against the sheriff; 7, paying money into court in lieu of special bail; 8, proceedings under the Absconding Debtors Arrest Act, 1851. 1. In what cases special bail is necessary.—We have seen that, by the 7 & 8 Geo. IV. c. 71, a defendant could only be arrested and held to special bail (which are convertible terms) where the plaintiff's demand amounted to 201., over and above costs. By a subsequent statute (1 & 2 Vict. c. 110, s. 3) the cases in which a defendant may be held to bail in civil causes are confined to those therein provided. It enacts, that if a plaintiff in any action in any of the superior courts of law at Westminster, in which the defendant is now liable to arrest, shall show by affidavit to the satisfaction of a judge of one of the said courts that such plaintiff has a cause of action against such defendant or defendants to the amount of 201. or upwards, or has sustained damage to that amount, and that there is probable cause for believing that the defendant or any one or more of the defendants is or are about to quit England, unless he or they be forthwith apprehended, such judge may order the defendant or defendants to be held to bail in any sum he may think fit, not exceeding the amount of the debt or damages. The plaintiff may thereupon sue out a writ of capias, and arrest the defendant, who, when so arrested, is to remain in custody till he shall have given a bail bond to the sheriff, or shall have made deposit of the sum endorsed on such writ of capias, together with 10%. for the costs. The application for this order is to be made to a judge at chambers, and is, of course, made ex parte. It should not be made until after the issue (not service) of the writ of summons, although the affidavit in support of it may be made before. This affidavit must clearly disclose the grounds of the defendant's liability, and show a complete and subsisting cause of action. The amount of the claim should upon no account be overstated. The facts which evidence the intention of the defendant to leave the country must be stated in the affidavit, and it is not sufficient that the deponent merely states his own belief in the existence of such intention. A short and merely temporary absence in the ordinary course of business, as in the case of the captain of a steamer plying between an English and a Continental port, is not a "quitting England" within the meaning of this statute.

A copy of the writ of capias must be delivered by the sheriff to the defendant upon his arrest. Instead of giving bail, he may, under the 43 Geo. III. c. 46, s. 2, recognised by the above enactment, deposit with the sheriff the amount endorsed, with 10%. for costs, on receiving | which deposit the sheriff is bound to discharge him. If he does not make this deposit under the Statute, he either remains in the sheriff's custody, or is discharged on entering into a bail-bond to the sheriff, with two or more sufficient sureties, the condition of which is, that the defendant shall duly put in special bail to the action within eight days from the execution of the writ: the condition of the bond thus given can only be satisfied by special bail being duly put in and perfected, unless money be paid into court under the 7 & 8 Geo. IV. c. 76, s. 2, as will be afterwards explained.

2. Who may become special bail. The general qualification of special bail is that they should be householders or freeholders. A peer of the realm, a member of the House of Commons, a servant in the king's household liable to be called on to attend the king, cannot become bail, all such persons being exempted from the ordinary process of the courts. It is a rule of the courts that no attorney shall become bail, which rule has been extended to their clerks, and was intended to protect attorneys from the importunities of those who employ them; and no person can be bail who is indemnified for his liability by the defendant's attorney. In order to prevent extortion, no sheriff's officer, bailiff, or person concerned in the execution of process can become bail, which rule has been extended to keepers of prisons and turnkeys. Uncertificated bankrupts, and insolvent debtors who have not paid 20s. in the pound upon their scheduled debts, are disqualified from becoming bail by their want of sufficient property. For the

ARTS AND SCI. DIV. VOL. I.

3. Of the mode of putting in or recording bail and their justification.Special bail may be put in by the defendant himself or his attorney, or by the sheriff or his bail in order to their own indemnity; and they may be put in either before a judge in London or (in vacation) before a commissioner under 1 & 2 Vict. c. 45, s. 4, before a judge of assize in, they are required to make a formal acknowledgment, called a recognizance of bail, that they owe to the plaintiff the sum sworn to, and that they undertake to pay the same and all costs, to be levied upon their property, unless the defendant, if defeated in the action, pays the debt or damages, and costs, or renders himself to prison; or, in case he fails to do either, unless they, the bail, pay the costs and money recovered, for him, or surrender him to custody.

Bail is thus put in either absolutely, with the consent of the plaintiff's attorney, which is very unusual in practice, or de bene esse, to be perfected, subject to the plaintiff's approval or exception. When put in de bene esse, a formal notice in writing of their being put in should be forthwith given to the plaintiff's attorney, accompanied by an affidavit of justification of each of the bail, to the effect that they are freeholders or householders, and are worth the amount necessary for justification, as above explained. Four days' notice of intention simultaneously to put in and justify special bail may also be given where that course is preferred. If notice of justifying the bail was duly given, and accompanied by the affidavits of sufficiency above mentioned, the bail will be considered as justified, unless the plaintiff have given notice of and entered his exception to them at least one day before that appointed for their justification. But if the bail were not put in in due time, they must justify whether excepted to or not. If unopposed, the justification is allowed as of course.

The bail may be opposed on their justification by personal examination as to their sufficiency, or by affidavits disclosing such facts as show some irregularity in the proceedings, or that the bail are really incapable of fulfilling their engagement. The corrupt practice of men hiring themselves out as bail is as old as the time of Charles II., when Butler alludes to it, and it continued to a considerable extent until the amendment of the law relating to arrest on mesne process. Personating another person, so as to render him liable as bail, was made a capital felony by the statutes 21 Jac. I. c. 26, and 4 & 5 Will. and Mary, c. 4; but by the 11 Geo. IV., and 1 Will. IV. c. 66, s. 11, it was reduced to a felony, punishable with transportation or imprisonment.

4. Of the extent of the liability of bail.-We have seen that the bail enter into a recognizance, that if the defendant is convicted, he shall pay the debt or damages, and costs recovered, or render his body to the prison of the court; and therefore if the plaintiff proceed in his action in due time, for the cause of action expressed in the process, and regularly recover judgment, the bail are in general liable to pay the money which he recovers, or to render the defendant to prison. Anciently an absurd practice prevailed, that if a man became bail for another, in however small a sum, he was bail for him in all actions brought by the same plaintiff against the same defendant during the same term, were the sums ever so great: while, on the other hand, if the plaintiff declared in his action against the defendant for a greater sum than was expressed in the process, the bail were wholly discharged. It is now however settled (see Rules of Hilary Term, 1853, r. 109), that whatever sum may be declared for or recovered by the plaintiff in the particular action, the bail remain liable; but they are only together liable to the extent of the sum sworn to by the plaintiff, and the costs of suit, not exceeding in the whole the amount of their recognizance. They are of course further liable to the costs of any proceedings that it may become necessary to take against them to enforce their liability. They are not liable to the costs of proceedings in error against their principal. The liability of the bail on the recognizance attaches. according to its terms, on conviction of the defendant, that is, on final judgment being entered against him; but as the recognizance is in the alternative, they are not immediately fixed with the debt, &c., but have a certain time allowed by the practice of the courts, within which, even after judgment, they may discharge themselves by rendering the defendant's person; the length of which interval is determined by the mode of proceeding by which the plaintiff proceeds against the bail on their recognizance. A writ of ca. sa. must have been issued against the defendant, and have been returned before any proceedings can be had against the bail. [CAPIAS.]

5. The modes in which the bail are discharged.-The bail are discharged either by performing the recognizance, or by some matters which operate to excuse them from such performance. As to the special circumstances which operate to relieve the bail from their obligation, the general rule is, that wherever by the act of God or by the act of the law, a total impossibility or temporary impracticability to render the defendant has been occasioned, the courts will relieve the bail from the unforeseen consequences of having become bound

for a party whose condition is so changed as to put it out of their power to peform the alternative of their obligation without any default of their own. Thus, if the principal die before the return of the writ of execution (the capias ad satisfaciendum) against him, or if before that time he is made a peer of the realm, or become a member of the House of Commons; or if he become bankrupt and obtain his certificate, or be discharged under the Insolvent Act; or if he be sentenced to transportation, and actually on board a convict-ship under such sentence, or be impressed into the Queen's service, or be sent out of the kingdom under an alien act; or if the plaintiff is guilty of some default, as if he do not proceed in due time or in proper manner against the defendant; or if he take a security from the defendant, and thereby give him time without consent of the bail,-in these cases the bail are excused from performance of their obligation, and will be relieved by the courts. In cases where there is not a total impossibility of rendering the bail, but only a temporary impracticability, the courts will not absolutely discharge the bail, but will assist them in other modes; as by issuing a habeas corpus, in order to bring up the defendant to be rendered in cases where he is in legal custody for crime, or by enlarging the time for making the render. 6. Of proceedings on the bail-bond and against the sheriff-We have seen, that when the defendant is discharged from arrest, he in most cases enters into a bail-bond with sureties to the sheriff, the condition of which bond is that the defendant do cause special bail to be put in for him to the action within eight days after execution of the capias. If special bail are not put in and justified in proper time, according to the rules of practice of the court, this bond becomes forfeited, and the plaintiff then may either proceed against the sheriff by calling upon him to bring in the defendant's body according to the command of the writ; or, if he is satisfied with the bail to the sheriff, he may cause the sheriff to assign over to him the bail-bond, under the statute 4 & 5 Anne, c. 16, s. 20, and may in his own name sue the defendant and his bail on the bond. The plaintiff, by adopting this last course, in general discharges the sheriff from his liability; and therefore it is only resorted to when the sheriff's bail are of undoubted sufficiency. If the plaintiff's proceedings on the bail-bond are irregular, they will (like other proceedings) be set aside with costs. But the courts will also stay such proceedings in many cases, even when they are regular; the action on the bail-bond being in fact only a subsidiary proceeding for enforcing the general object of bail. In cases where there is really any defence to the original action-any fair question to try-it is obvious that this can only be properly and satisfactorily tried in that action, and not in the collateral action on the bail-bond. Therefore, if the defendant makes application to the court with a proper affidavit of merits (that is, a good and lawful defence,) in the original action, the courts will in general stay proceedings on the bail-bond upon terms, so as to give an opportunity for a trial in the original action.

If there is no bail-bond, or if the plaintiff is dissatisfied with the sheriff's bail, he may take proceedings against the sheriff, who is responsible for the due execution of the writ. The plaintiff therefore obtains a rule or order of the court, calling upon him to make a return to the writ (see r. 132, H. T. 1853), which must, by the 20 Geo. II. c. 37, s. 2, be done before six months after the expiration of his office; and the rule must be served on the sheriff or his under-sheriff. This is usually effected by leaving a copy (showing the original) at the office of the sheriff's deputy in London. If there is no return, it is a contempt of court, and an attachment against the sheriff will be granted. To the rule to return the writ the sheriff may make such return as is consistent with the fact, either that the defendant is not found in his bailiwick, or that he has taken him (cepi corpus) and has him ready; or that he is sick, or that he has escaped, or has been rescued; or that he has been discharged on making a deposit with the sheriff, under the 43 Geo. III. c. 46, s. 2, &c. &c. If the return is false, the sheriff is liable to an action. If he return cepi corpus et paratum habeo, and if special bail are not put in and perfected in due time, the plaintiff may either take an assignment of the bail-bond, if any given, and proceed thereon against the bail, or he may obtain an order of the court requiring the sheriff to bring in the body or person of the defendant. If the plaintiff adopt the latter course, the sheriff must either bring the defendant (constructively, by showing him to be in his safe custody,) into court, or he must put in and perfect bail within the time allowed by the rule. If he fail in this it is a contempt of court, for which an attachment will issue on an affidavit that the rule has been duly served, and that no bail is put in. As these proceedings against the sheriff are (like the proceedings on the bail-bond) regarded by the courts as only intended to enforce the attainment of sufficient bail, the courts will also in this case extend their indulgence to the sheriff, and stay the proceedings against him, and let in a trial on the merits for the benefit of the sheriff, or the bail, or the defendant, on good bail being put in and perfected.

The rules on the subject of bail, which were formerly very complicated, and different in each separate court, have been of late much simplified by rules of court, and by the statute above cited, for uniformity of process, which was introduced by the late Lord Tenterden. 7. Paying money into court in lieu of special bail.-In cases where the defendant has, in pursuance of the 43 Geo. III. c. 46, s. 2, in lieu of bail to the sheriff, deposited in his hands the sum indorsed on the

writ, and 101. for costs, to answer the costs up to the eighth day inclusive after the arrest, and the sheriff has paid these into court, as he is bound to do, the defendant, instead of putting in and perfecting special bail, may, by virtue of the 7 & 8 Geo. IV. c. 71, s. 2, allow such sums, together with the additional sum of 101. to be by him paid into court as a further security for costs, to remain in court to abide the event of the suit. In other cases, where the defendant has not made such deposit with the sheriff, the defendant, instead of putting in and perfecting special bail, may deposit and pay into court the sum indorsed on the writ, and 201. as a security for the costs of the action, there to remain to abide the event of the suit. In either case, defendant should enter an appearance to the writ of summons; and if judgment be given for the plaintiff, he will be entitled, by order of the court upon motion, to receive the money so remaining in, or so deposited or paid into court, or so much thereof as will be sufficient to satisfy the sum recovered by the judgment and the costs of the application. And if judgment be given for the defendant, or the plaintiff discontinue or be otherwise barred, or if the sum deposited and paid into court be more than sufficient to satisfy the plaintiff, the money so deposited or paid into court, or so much thereof as shall remain, will, by order of the court upon motion, be repaid to the defendant. 8. Proceedings under the Absconding Debtors' Arrest Act, 1851.Further legislative provision has been made by The Absconding Debtors' Arrest Act, 1851,' which empowers country commissioners of bankruptcy, and judges of county courts beyond the metropolitan district, to issue, upon similar application and similar affidavit to those above considered, a warrant for the absconding debtor's arrest, to the messenger of the commissioners of bankruptcy, or to the high bailiff of the county court, indorsed in the same manner as a writ of capias. This warrant may be executed at any time within seven days from its date inclusive; the officer executing it must detain the debtor until he has paid the debt and costs indorsed on the warrant, or given bail according to the practice of the superior courts, or is otherwise lawfully discharged. A copy of the warrant must be served upon the debtor when arrested. The warrant may be executed in any part of England, and is to be transmitted, if necessary, from the bailiff of the county court whence issued to the bailiff of any other county court within the district of which the debtor is supposed to be, and such latter bailiff may lawfully execute it, as though it had been directed to him by the judge of the county court out of which it issued. But as this warrant is only auxiliary to the process under the 1 & 2 Vict. c. 110, s. 3, it becomes void and of no effect as a protection to the creditor, unless a capias, and, in cases where no action was pending in the superior courts, a writ of summons therein, be forthwith issued and served within seven days from the day of the date of the warrant inclusive. Upon such service of the capias, the debtor is deemed to have been arrested by virtue of the capias, and all proceedings must be had upon it as if it had been issued prior to the issuing of that warrant, and according to the ordinary practice. If the debtor, upon his arrest under the warrant, pays the debt and costs, and is accordingly released from custody, the capias must be issued, but need not, of course, be served. The debtor, when arrested, may at once pay the debt and costs indorsed on the warrant to the officer duly arresting him, or enter into a bail-bond to him with two sufficient sureties for the amount indorsed, conditioned to put in special bail as required by the warrant, or to make deposit of the sum so indorsed, together with 104. for costs, and thereupon he is entitled to be discharged from custody. Any person for whose arrest a warrant has been granted may, either before or after arrest, and before the writ of capias has been issued, apply to any commissioner of bankruptcy or county court judge, or to any judge of the superior courts, or to the court mentioned in the affidavit of debt or warrant for the arrest, for a summons or rule calling upon the creditor who has the warrant to show cause why it should not be set aside (if the application is made before arrest), or why the debtor should not be discharged out of custody (if the application is made after arrest); and the commissioner or judge may make absolute or discharge the summons or rule, and direct the costs of the application to be paid by either party, or make such other order therein as he thinks fit; but such order may be discharged or varied by the court, on application made by either party dissatisfied with it. (See Archbold's Practice,' 10th edit., by Prentice, vol. i. pt. 2; and Pollock's County Court Practice,' 3rd edit. pt. 1, cap. 26.)

Bail in error.-These are sureties required to be given by a defendant at law, who sues out a writ of error to reverse a judgment which has passed against him, and who desires to stay execution in the meantime. The condition of the recognizance into which they enter is, that the party suing out the writ of error shall prosecute it with effect, and if the judgment be affirmed, shall satisfy the debt and costs recovered, together with all such costs and damages as are awarded by reason of the delay of execution occasioned by the writ of error, or else that the bail shall do it for him. By the common law, no bail in error was required, and a defendant might therefore delay a plaintiff of his execution without giving any security to prosecute his writ of error, or to pay the debt and costs if the writ failed. This inconvenience was only partially remedied by the statute 3 Jac. I. c. 8, which required bail in error only in certain particular actions, and by the 13 Car. II. stat. ii, c. 2, and the 16 & 17 Car. II. c. 8, which rendered it necessary only where the judgment was after verdict, and

not in cases where the defendant suffered judgment by default. And accordingly it became the common practice of defendants sued upon bills of exchange and other simple contracts, and having no real defence, to delay the plaintiff by suffering judgment by default, and then by bringing a writ of error, in which case they were under no obligation to find bail. These delays were suppressed by an Act, 6 Geo. IV. c. 96, s. 1, introduced by the late Sir Robert Peel, which required bail on every writ of error after judgment for the plaintiff, whether by default or after verdict, unless otherwise ordered by the court or one of its judges. The practice is now regulated by the Common Law Procedure Act, 1852, the provisions of which consolidate the previous law, and extend to cases of error in fact, to which the above cited statute of Geo. IV. did not apply. The bail must be put in within four days after lodging the memorandum alleging error, or after the signing final judgment, otherwise the plaintiff in the original action may proceed to take out execution. The recognizance is taken in double the sum recovered by the judgment, except in the case of a penalty, where it is limited to double the sum really due and double the costs. The bail must justify, if required, and may be opposed by the plaintiff; but as the engagement is not alternative, like that of the bail in the original action, but absolute to pay the sum recovered and costs, bail in error cannot discharge themselves by surrendering their principal; nor are they entitled to relief if their principal becomes bankrupt. By the Common Law Procedure Act, 1854,' an appeal somewhat in the nature of a writ of error is given in certain cases, upon the refusal, or making absolute, or discharging, rules for new trials, or for nonsuit, or to enter verdicts; and upon such appeals it is provided, sec. 38, that notice of appeal shall be a stay of execution, provided bail to pay the sum recovered and costs, or to pay costs where the appellant was plaintiff below, be given in like manner and to the same amount as bail in error, within eight days after the decision complained of, or before execution delivered to the sheriff. (See Archbold's Practice,' 10th edit., by Prentice; vol. i. pt. 1. cap. 26, and vol. ii. pt. 5, cap. 28.)

Bail in Criminal Cases.-These are the sureties given to the crown by a party accused of a crime, who is allowed by a court or magistrate to be at liberty till trial, on giving security for his due appearance. By the common law, all accused persons, even though charged with heinous felonies, were allowed the privilege of bail, till the crime of murder, and afterwards treason, and other felonies, were excepted by statute. Further regulations were introduced on the subject by statutes of Henry VI., and of Philip and Mary, which contained many nice distinctions as to the offences which were bailable, and those which were not so. The provisions of these statutes respecting bail, were extended by the 7th of Geo. IV., c. 64, s. 1, introduced by the late Sir Robert Peel. A subsequent statute, 11 & 12 Vict. c. 42, s. 23, now regulates the law of bail in all cases of felonies, and also of those misdemeanors which are by statute excepted from the common law right of bail. This common law right of bail in all other misdemeanors is recognized and enforced by the same enactment. It enacts that any person charged before a justice with any felony (not being treason), or with any assault with intent to commit felony, obtaining or attempting to obtain property by false pretences, receiving property stolen or obtained by false pretences, perjury or subornation of perjury, concealing the birth of a child by secret burying or otherwise, wilful and indecent exposure of the person, riot, assault in pursuance of a conspiracy to raise wages, assault upon a police officer in the execution of his duty, or upon any person acting in his aid, neglect or breach of duty as a peace officer, or any misdemeanor for prosecution of which the costs may be allowed, may be bailed at the discretion of the justice or justices. By section 21, provision is made for bailing persons remanded for further examination; and see hereon in cases of summary jurisdiction the 18 & 19 Vict. c. 126, ss. 5 & 6; and the 20 & 21 Vict. c. 43, s. 3. In cases of treason, the justices have, as above stated, no power of taking bail, but such power is reserved to a Secretary of State, to the court of Queen's Bench, or in vacation to a judge thereof.

The recognizance of bail is conditioned for appearance and surrender of the person charged, at the time and place of trial, and for his then and there pleading and taking his trial, and not departing without leave. This recognizance may in certain cases be removed to the Central Criminal Court, under the 19 & 20 Vict. c. 16, s. 10, and the person charged may, after appearance at such court, be again bailed or committed to Newgate, s. 22, Bail may at any time seize and surrender their principal, and thus discharge themselves.

The above-mentioned Acts apply only to the taking of bail by justices of the peace, and do not in any way affect the authority of the superior courts of law to admit prisoners to bail. The courts of Common Pleas and Exchequer, and the Court of Chancery, may, by the common law, award a habeas corpus to bring up any person committed for a crime under the degree of felony or treason, and may discharge him, if it appear that the commitment was illegal, or bail him if it appear doubtful. The authority of the chancery is said, indeed, to extend to cases of felony; that of the other two courts is confined to misdemeanors. The Court of Queen's Bench has a more extensive authority; that court, or any one of its judges in time of vacation, may bail a party committed for any crime whatever, even for treason or murder; and they will in general exercise this authority in cases not capital, and also in capital cases, where the circumstances raise a presumption of the party's innocence. But neither the Court of Queen's Bench nor any other court can bail

prisoners in execution, or suffering imprisonment under the sentence of a competent court for crime, or for a contempt of its authority, unless indeed it is plainly made to appear to that court that they are not guilty of the offence, or unless a prisoner is in danger of losing his life from the effects of continued confinement. And it seems now to be considered as settled that the Court of Queen's Bench has no authority to admit to bail a person committed by either House of Parliament so long as the Parliament is sitting; though, when the session is at an end, it seems admitted that it possesses such power. Metropolitan police magistrates have under the 2 & 3 Vict. c. 71, s. 36, special powers of bailing persons charged before them, even upon their sole recognizance, without surety. Justices of the peace have also special powers under the Juvenile Offenders Act, 10 & 11 Vict. c. 82, s. 15, of bailing either upon remand or commitment for trial, or upon suffering to go at large. Under the 11 & 12 Vict. c. 78, s. 1, the Act establishing the court for the consideration of Crown cases reserved, convicted prisoners upon whom judgment has been postponed, or the execution respited, may be admitted to bail by the court before which they were tried, and this power would seem to extend even to cases of treason. Persons convicted of misdemeanor, and having obtained a writ of error to reverse the judgment, may obtain an interim stay of execution and discharge from custody, provided they enter into a recognizance with two sufficient sureties to prosecute the writ with effect, to appear in court to receive judgment, and to surrender if the judgment be affirmed. See 8 & 9 Vict. c. 68, ss. 1, 2; 9 & 10 Vict. c. 24, s. 4., and 16 & 17 Vict. c. 32, ss. 1, 2. The bail taken, should be such as in the opinion of the justice admitting to bail, will be sufficient to secure the appearance and surrender of the person accused at the time and place of trial. Care must however be taken, at least in all cases bailable as of right, not to require such excessive bail as in effect to amount to a denial of bail, which is one of the grievances complained of by the Bill of Rights (1 Will. & Mary, st. II., c. 2), and prohibited by that Act.

By the 10th Geo. IV. c. 44, s. 9 (the Metropolis Police Act), it is lawful for any constable in London attending at any watchhouse in the night time, to take bail from persons charged with petty misdemeanors, without warrant of a justice, and such recognisances shall be of equal obligation as if taken by a justice of the peace.

(See Blackstone's Comm., by Dr. Kerr, vol. iv. p. 349, et seq.; Bacon's Abridgment, tit. Bail in Criminal Cases,' 7th edit.; and Archbold's Criminal Practice,' 14th ed., by Welsby.)

BAIL. In Scotland, this term properly is confined to criminal law. In the civil courts the proper term is caution. Anciently, pledges of prosecution and appearance were demanded from litigants no less universally than in England; the judicial writs in both countries being then essentially the same. The writs which originate proceedings in the Court of Session however do not now make mention of pledges; and, accordingly, bail is now known in the Scottish civil courts only in exceptional cases. Two kinds were formerly in use,-caution judicio sisti, and caution judicatum solvi; phrases derived from the civil law through the medium of the old French courts, and answering to the forthcoming borgh, and the surety as law will, of the ancient common law of Scotland. Both kinds long continued in use in maritime causes, but by 13 & 14 Vict. c. 36, s. 24, they are abolished in such causes in the Court of Session; and by 1 & 2 Vict. c. 86, s. 22, caution judicatum solvi cannot be demanded in such causes in the Sheriff' Courts, unless by leave of the judge on cause shown.

The cases in which bail may still be received in civil actions in Scotland are those in which the debtor may be arrested on foreign warrant or flight warrant. Foreign warrants are of two kinds, usually called burgh warrants and border warrants. Of all these, the burgh warrant appears the most ancient, and from it the others are perhaps derived. It seems also to have a common origin with the foreign attachment of London, Bristol, and other towns of England.

The burgh warrant is a burghal or civic proceeding directed against non-resident debtors. It appears as early as the reign of King David II., by cap. 36 of whose laws it was enacted, that if any stranger take up goods or necessaries within burgh, and offer to go away leaving the same unpaid, he shall be attached and detained by public warrant. At length, after various determinations of the courts on the subject, which it is not necessary here to detail, the Act 1672, c. 8, was passed, by which the custom is now regulated. The following particulars may thence be gathered:-The privilege is limited to royal burghs, and to book debts for man's meat, horse meat, and other merchandise due by a stranger to an inhabitant burgess, the plaintiff being the merchant, innkeeper, or stabler from whom the same was gotten, and to whom it was originally addebted, and having no bond from the stranger nor any other security except his own compt-book; and the remedy is arrest and imprisonment of the stranger, by warrant of the magistrates, till he find caution judicio sisti in any process to be brought for payment of the debt within six months. Border warrants are granted, on application to any judge ordinary, on the borders between England and Scotland, against debtors whose domicile is on the opposite side, for arresting them till they find like caution judicio sisti. To obtain a flight warrant, fuga warrant, or warrant against a debtor as in meditatione fuga, a petition is presented to any judge ordinary by the creditor, stating his debt, and his information and belief that the debtor is about to flee the kingdom without paying the same, and praying warrant to bring him before the court for examination. With