(c) Setting aside and staying proceedings.]-The proceedings will be set aside for irregularity according to circumstances, many of which have been already stated, and which it is unnecessary to specify; thus, where the action on the bailbond is commenced too soon; (1) where the rule to bring in the body is sued out before the time for putting in bail has expired.(2) So where an action has been brought on the bail-bond contrary to good faith. (3) So if the plaintiff proceed against the sheriff or on the bail-bond, knowing that the defendant had died before the eight days for putting in bail had expired.(') So, in some cases, where the defendant and both bail have become bankrupts.(5)

The application to set aside must, as in ordinary cases, be made promptly. It is not necessary, before applying, to put in bail to the original action.(6)

The court may stay proceedings on bail-bonds, where the proceedings are perfectly regular, and may afford by rule such relief to the plaintiff or defendant in the original action, and to the bail, as is agreeable to justice and reason, and such rule shall have the effect of a defeasance to the bailbond. () The court will also, on similar principles, relieve the sheriff, unless he has been guilty of some breach of duty.(") In all cases of bailable proceedings under the act 1 & 2 Vict. c. 110, the proceedings will be stayed on putting in or perfecting bail, or payment into court in lieu of bail, or render and payment of costs. (9)

Proceedings on the bail-bond may be stayed on payment of costs in one action, unless sufficient reason be shown for proceeding in more. (10) This application should be made before verdict.("1)

The application to stay cannot be made until either bail has

(1) Alston v. Underhill, 1 Cr. & M. 492; Anon. 2 Chitt. R. 103. (2) Rolfe v. Steele, 2 H. Bl. 276.

(3) Sweeting v. Weaver, 11 Price, 734.

(*) See R. v. Sheriff of Middlesex, 3 T. R. 133; R. v. Sheriff of Essex, 8 Sc. 363.

(5) Streeter v. Scott, 2 Dowl. 362; Coulson v. Hammond, 2 B. & C. 626.

(6) Heath v. Gurley, 4 Moore, 149.

(7) 4 & 5 Anne, c. 16, s. 20.

($) R. v. Sheriff of Surrey, 7 T. R. 239; Todd v. Jacob, 2 B, & Ald. 354; R. v. Sheriff of Kent, 2 M. & W. 316.

Ede v. Collingridge, 11 M. & W. 61; 2 Dowl. N. S. 764; R. v.

Sheriff of Middlesex, 15 M. & W. 146.

(19) Rule Pr. 85, H. T. 1853.

(11) Johnson v. Macdonald, 2 Dowl. 44.

been perfected(1) or put in, and the defendant rendered, or money is paid into court in lieu of bail. But the application may be made on the same day the bail justifies: (*) and it has been made even after execution sued out, and execution issued against the bail.(3) When the application to stay proceedings is made by the bail, the court cannot impose terms on the defendant.(*)

Affidavit." No rule shall be drawn up for setting aside an attachment regularly obtained against a sheriff for not bringing in the body, or for staying proceedings regularly commenced on the assignment of any bail-bond, unless the application for such rule shall (if made on the part of the original defendant) be grounded on an affidavit of merits ; or (if made on the part of the sheriff or bail, or any officer of the sheriff) be grounded on an affidavit, showing that such application is really and truly made on the part of the sheriff or bail, or officer of the sheriff (as the case may be), at his or their own expense, and for his or their indemnity only, and without collusion with the original defendant."(") The affidavit on setting aside an attachment must be intituled "The Queen against the Sheriff of , in a cause of

A. B. v. C. D. ;" on setting aside proceedings on the bailbond, it must be intituled in the original action or in the action on the bond.() If it is an affidavit of merits, it must be positively stated that there is a "good defence on the merits.") If the attorney of the defendant makes the affidavit, he must so describe himself; (8) but if it is made on behalf of the bail, this need not be stated, provided it is stated there is a good defence on the merits.(9) It seems all the bail must make the application.(10) It is not sufficient to say the application is for their "own," or their "only"

(1) Heath v. Gurley, 4 Moore, 149.

(2) Shawe v. Johnstone, 2 Chitt. R. 108.

(3) Lepine v. Barrett, 8 T. R. 223.

(4) Call v. Thelwell, 3 Dowl. 443; 1 Cr. M. & R. 780; Gale v. Hayworth, 6 Dowl. 323.

(5) Rule Pr. 88, H. T. 1853.

(6) Lines v. Chetwood, 1 Dowl. 321; 2 Cr. & J. 332; Kelly v. Wrother, 2 Chitt. R. 109. In the C. P. it is intituled in the action on the bond; Ham v. Philcox, 7 Moore, 52; ibid. 600.

(7) Grottick v. Bailey, 5 B. & Ald. 703; Lane v, Isaacs, 3 Dowl. 652; Crosby v. Innes, 5 Dowl. 566.

(8) Bonnefor v. Russel, 5 Dowl. 546.

(9) Bell v. Taylor, 1 Chitt. R. 572.

(16) Ridgway v. Porter, 3 Dowl. 443; Dawson v. Cull, 2 Cr. & J.

indemnity, or for their "protection."(1)

The court will

sometimes give time to produce an amended affidavit.(2) When the rule is made absolute, an appointment should be obtained from the Master to tax costs, which should be forthwith paid, otherwise the rule will not be a stay of proceedings.

Proceedings in original action after stay.]-Where the proceedings have been stayed generally, on payment of costs, the defendant may plead his bankruptcy in bar to the original action,(3) but not in abatement.(4)

When the defendant pays the debt and costs in the action against him, the proceedings against the bail will be stayed on payment of the costs in the action against them.(5)

"In all cases where the bail-bond shall be directed to stand as a security, the plaintiff shall be at liberty to sign judgment upon it."()

When stay or setting aside refused.]-If the sheriff fail to set the attachment aside, he must pay the whole debt and costs in the original action, and the costs of the attachment. (7) Though he in general is reimbursed by his bailiff, he can maintain no action against the defendant for money paid, (*) nor detain the defendant in custody.(")

If the bail-bond be not set aside or stayed, the bail must pay the debt and costs of the original action, together with the costs of the action against the bail. (10)

7. Fees of Sheriff.

These are stated at the end of this volume, along with the sheriff's fees in other proceedings.

(1) Cull v. Thelwell, 3 Dowl. 443; R. v. Sheriff of Cheshire, 6 Dowl. 709; 3 M. & W. 605; R. v. Sheriff of Middlesex, 8 A. & E. 938. (2) R. v. Sheriff of Cheshire, 3 M. & W. 605; Merryman v. Quibble, 1 Chitt. R. 117; but see R. v. Sheriff of Middlesex, 8 A. & E. 938. (3) Sainsbury v. Gandon, 3 M. & R. 16.

(4) Anon. 2 Salk. 519.

() Betts v. Smyth, 2 Q. B. 113.

(") Rule Pr. 84, H. T. 1853.

(1) R. v. Sheriff of Devon, 1 B. & Ad. 159; R. v. Sheriff of Middlesex, 15 M. & W. 146; 3 D. & L. 472.

(8) Pitcher v. Bailey, 8 East, 171.

(Rimmer v. Turner, 3 Dowl. 601. See, where the bailiff paid the money, and recovered from a defendant, whose misconduct caused the loss, and who specially promised an indemnity, White v. Laroux, 1 M. & M. 347.

(19) Stevenson v. Cameron, 8 T. R. 28; Mitchell v. Gibbons, 1 H. Bl. 76.

(a) Who, and how many.]-Special bail, or bail above, are the persons who undertake to be responsible for the defendant's paying the debt and costs which may be found due, or rendering himself to the keeper of the Queen's prison. The bail must be not less than two in number.(1) It is irregular to give notice of more bail than two;(2) but the court or a judge in heavy cases will allow more.(3)

The chief qualification of a bail is that he possesses sufficient property to satisfy his recognizance, and which might be made available for that purpose. Hence, in general, any one may be bail who is a housekeeper or freeholder, and is worth double the amount sworn to over and above what will pay his just debts, and over and above every other sum for which he is then bail, except when the sum sworn to exceeds 1,000l., when it shall be sufficient in the bail to justify in 1,000l. beyond the sum sworn to.(*) But no person

(1) Stewart v. Bishop, Barnes, 60; 1 Chitt. R. 602 n.; White's bail, 5 Dowl. 133.

(2) Rule Pr. 91, H T. 1853.

(3) Easter v. Edwards, 1 Dowl. 39; 1 Sel. 159.

() Rules Pr. 98, 101, H. T. 1853.

can be so, who is indemnified for so doing by the defendant's attorney; (1) nor can the bail be (except for the purpose of rendering) a practising attorney, or clerk of a practising attorney, or a sheriff's officer, bailiff, or person concerned in the execution or process, and such bail may be treated as a nullity; (2) nor can a peer or other person privileged from arrest. (3) Further qualifications of these general rules are stated more fully post, "Opposing Justification."

(b) In what cases.]-Special bail must be put in in all cases where the defendant has been once arrested and is at large; but if the defendant has made a deposit with the sheriff (ante, p. 797), he may, in lieu of putting in special bail, allow that deposit to be paid into court, and must also pay 10l. additional, as a security for costs, and enter appearance to the writ of summons; or if he has not made any deposit with the sheriff, he may, in lieu of putting in special bail, pay at once into court the sum indorsed on the writ, and 201. more as a security for costs.() If the plaintiff, after being discharged on giving a bail-bond to the sheriff, put in special bail within the eight days after the arrest, and the sheriff choose to accept of the surrender (which he is not bound to do), (3) this prevents proceedings on the bail-bond.(*)

(c) By whom put in.]-Special bail may be put in by the defendant or his attorney, or by the sheriff;(7) or by the bail to the sheriff, () and, it seems, no order to change an attorney is required for this step, (9) and if the sheriff has already put in and justified bail, the defendant may still have his also allowed.(10)

When put in.]-Bail may be put in after the writ is issued,

(1) Rule Pr. 93, H. T. 1853; yet he may be indemnified by any other person, Neat v. Allen, 1 B. & P. 21; so one who is to receive a commission on the sum sworn to cannot be bail, Foxall's bail, 7 D. & R. 783.

(2) Rule Pr. 94, H. T. 1853.

(3) Duncan v. Hill, 1 D. & R. 126; Graham v. Stewart, 4 Taunt. 249; Lock's bail, 1 Dowl. 124.

(4) 7 & 8 Geo. 4, c. 71.

(5) Hamilton v. Wilson, 1 East, 383.

(6) Plimpton v. Howell, 10 East, 100; Hodgson v. Mee, 3 A. & E. 765; 5 N. & M. 302.

(1) Wheeler v. Ranken, 1 Chitt. R. 81.

(3) Berchere v. Colson, 2 Str. 876.

() Plomer v. Houghton, 2 B. & Ald. 604; see 2 Chitt. R. 76.