of the clerk is evidence in support of such claim; and the justice trying the warrant, may give judgment and issue execution thereon: and such attorney shall be further liable to action for damages.

BAIL.

Bail, in criminal cases, to which this article is solely confined, is the setting at liberty of one arrested or imprisoned, on surety taken for his appearance at a day limited.

A man's bail are looked upon as jailors of his own choosing, and may take and deliver him, if they suspect he will deceive them, or may bring him before the justice of the peace, by whom he shall be committed, unless he find new sureties.

All prisoners are bailable by one or more sufficient sureties, unless for capital offences, where the proof is evident or the presumption great.-Const. $39.

These offences are capital:--High treason; petty treason; murder; burglary; robbery in dwelling houses or in or near the highway, or of churches; house burning, or burning of barns where there is corn or grain; to acknowledge or procure to be acknowledged any deed enrolled, recognizance, bail, or judgment in the name of another not consenting or privy; for a mother to conceal the birth of her bastard child, so that it doth not appear whether it were born dead or alive; taking away feloniously goods in any booth or tent in any fair or market; buggery; forging any deed or will, or writing relating to a term of years or annuity, bond, obligation, acquittance, release, or discharge of any debt or demand of any personal chattels, being a second offence after conviction and judgment for the former; horse stealing; acknowledging judgment in the name of another; maiming with malice aforethought, for a second offence after a former conviction and judgment; pick pocket; taking above twelve pence from the person privately and secretly; poisoning, of malice prepense; rape; acknowledging a recognizance in the name of another; the stealing of goods to the value of twenty shillings, out of a dwelling house or outhouse thereto belonging, or therewith used, in the day time, by breaking the same, though no person therein; robbery of any person in his dwelling house, booth, or tent, or in any fair or market, though not put in fear; stabbing another mortally,

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that other not then having a weapon drawn, or y then stricken the party stabbing, so that he die months; stealing of women having lands or good heirs apparent, contrary to their wills, who are married to the offender, or by his consent to other de filed; carnally knowing a woman child under ten years of age; and all such as have been before convicted and had judgment for any other felony than these above described, not being petit larceny. Also, counterfeiters of any note or notes of the bank of North America, or where the president, inspector, director, officer, or servant of the said bank shall convert any of the property, money, or credit of the said bank to his own use, or in any other way be guilty of fraud or embezzlement as an officer or servant of the bank; bigamy for the second offence, after clergy allowed in the first; coun terfeiting the bills of credit emitted pursuant to acts of 1783, c. 1. and 1785, c. 5 or making or constructing any die, press, type, or other instrument for emitting or counterfeiting them; altering or defacing any of the said bills with intent to change the value; or knowingly passing or uttering any counterfeit likeness thereof, after a conviction and judgment for the first offence; or if one be a second time convicted of uttering or passing such bills of credit, lottery tickets, or loan office cer tificates; counterfeiting any of the colonel's, comptroller's, auditor's, commissioner's, or any other certificates issued by public authority, with an intention to defraud or deceive; or altering or defacing any such certificates with intention to change the value; or knowingly passing or offering to pass or present as a voucher any counterfeit likeness of such certificates, upon a second conviction after a former conviction; forging or counterfeiting the stamp, note, or receipt of an inspector of tobacco; or offering for sale or payment, or demanding of any inspector of tobacco on any such forged note or receipt, knowing it to be such; or causing to be inspected any hogshead or cask of tobacco stamped with a forged or counterfeited stamp; or taking any stave, plank, or heading out of any hogshead of tobacco stamped as herein directed, after such hogshead shall have been delivered from any of the public ware-houses, for a second conviction after a former conviction and judgment; stealing, or by violence, seduction, or other means taking and conveying away any slave or slaves the property of another, with an intention to sell or dispose of to another, or appropriate to his own use; or by violence or other means taking or conveying away any free negro or person of mixed blood out of this state into another, with in

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he clerk i tent trying ell or dispose of; wilfully and maliciously killing a stilereo in the act of resistance to his owner; a master or con for dan of any ship or vessel conveying out of this state on boar his vessel any negro or mulatto slave or slaves, without the owner's consent in writing, or who shall receive on board any such slave or slaves or permit the same to be done for that purpose; or who shall wickedly and willingly conceal or permit to be concealed on board, any such slave or slaves absconding from the master or mistress, citizens of this state, for the purpose of enabling such slave or slaves to escape out of this state; killing another in a duel; a married man or woman to take another wife or husband, the first still living.

Of the foregoing offences, some are capital also as they regard accessories before the fact, such as petty treason, murder, burglary, robbery in dwelling houses, or in or near the highway, or of churches; house burning or burning of barns where there is corn or grain; to acknowledge or procure to be acknowledged any deed enrolled, recognizance, bail, or judgment in the name of another not consenting or privy; to break any dwelling house or out house thereto belonging or therewith used, in the day time, and steal money or goods to the value of twenty shillings or upwards, therein being, though no person shall be therein; killing another in a duel.

For all offences not capital, or even for capital offences where the proof is not satisfactory or the circumstances strong against the prisoner, any one justice of the peace may admit the party to bail.

The bail to be required, should be reasonable, considering the nature of the offence and the circumstances of the offender. Excessive bail shall not be required. Bill of Rights, art. 10. Const. U. S. ad'l. art. 10.

If the bail taken, be found to be insufficient, either the justice bailing or other person having power to bail, may require the party to find better sureties, and to enter into a new recognizance with them, and may commit him on refusal.,

The person who is to take bail may examine them on their oaths concerning their sufficiency.

To refuse bail where the party ought to be bailed (he offering the same) is punishable by indictment: also, admitting to bail, where he ought not, is punishable by fine.

Also, the sheriff or his deputy may bail persons arrested upon a capias issuing on an indictment found in any court of

record, by taking recognizance for his appearance at the next court of the county where he ought to answer.

See Criminals, Examination.

For Forms of RECOGNIZANCE-See Appendix.

BARRETRY.

Barretry is the offence of frequently exciting and stirring up suits and quarrels between the citizens of the state, either at law or otherwise. The punishment for this offence in a common person is by fine and imprisonment, but if the offender belongs to the profession of the law, as is sometimes the case, a barretor who is thus able as well as willing to do mischief, ought also to be disabled from practising for the future.

A common barretor is said to be the most dangerous oppressor in the law; for he oppresseth the innocent by colour of law, which was made to protect them from oppression. No one can be a barretor in respect of one act only; for every indictment for such crime must charge the defendant with being a common barretor. And it hath been holden, that a man shall not be adjudged a barretor for bringing any number of suits in his own right, though they are vexatious, especially if there be any colour for them; for if they prove false, he must pay the costs.

Hereunto may be referred the offence of suing another in the name of a fictitious plaintiff, either one not in being at all, or one who is ignorant of the suit.

BASTARDY.

A bastard is one who is begotten and born out of lawful matrimony. So it is of all children born so long after the death of the husband, that, by the usual time of gestation, they could not be begotten by him.

If a man dies, and his widow soon after marries again, and a child is born within such time as that by the course of nature it might have been the child of either husband, he may when he arrives at years of discretion choose which father he pleases.

Children born during wedlock, may in some circumstances be bastards; as if the husband be out of the country for above

nine months, so that no access can be presumed, her issue during that period shall be bastards.

So also if there is an apparent impossibility of procreation on the part of the husband; as if he be only eight years old or the like, there the issue of the wife shall be bastards.

Two justices of the peace upon their own knowledge, or information made to them, that any single woman within their county is big with child, or delivered of a child or children, may cause such woman to be brought before them, and examine her upon oath concerning the father; and if she shall refuse to declare the father, she shall pay the sum of fifty shillings, and give sufficient security to keep such child or children from being chargeable to the parish, or shall be committed to prison until she shall declare the same, or pay the sum aforesaid and give security as aforesaid. But in case such woman shall upon oath, before any two justices, accuse any man of being the father of a bastard child or children begotten of her body, such person so accused shall be judged. the reputed father, and stand charged with the maintenance of the same as the county court shall order, and give security to the justices of the said court to perform the said order and to indemnify the county where such child or children shall be born, free from charges for his, her, or their maintenance; and may be committed to prison until he find securities for the same, if such security is not by the woman before given.

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Any two justices at their discretion, may bind to the next county court him that is charged on oath as aforesaid to have begotten a bastard child, which shall not be then born; and the county court may continue such person upon security until the woman shall be delivered, that he may be forthcoming when the child is born. Acts 1741, c. 14,

If a woman servant shall have a bastard during her servitude, she shall by order of the county court serve her master for one year a ter her time of servitude shall be expired; but if gotten with child by her master, she shall immediately after her delivery be sold by the overseers of the poor for one year, and the money appropriated to the use of the poor; or if she shall have a child by any negro, mulatto, or Indian, she shall be sold for two years, by the same persons and to the same uses; and the child shall be bound out by the county court until it shall arrive at the age of thirty-one years.

Whenever two justices shall bind the reputed father of a bastard child to appear at court in manner as prescribed in the 10th section of the act of 1741, and he shall not appear