for the Minister, who is presumably the proper person to act in such cases, to make an investigation, so that the State may suffer no detriment, and that justice may be done in the premises. The new Minister of Justice, Hon. Mr. Mills, is an eminently fair and just man, and, by reason of his want of local connection with Toronto and the Local Legislature, is in a position to deal with the whole subject in a manner entirely independent of personal or judicial association, and we believe the bar will be satisfied with his conclusions, after he has made a careful enquiry into the cause or causes of the murmurs and complaints which are undoubtedly in the air.

ACTIONS ON BONDS.

Notwithstanding the Judicature Acts, and the Law Courts Act, and that the Rules of Practice have been so often revised and amended and consolidated, the procedure on bonds as laid down by the 8 & 9 Wm. III, c. 11, has not been materially affected (a).

Rule 580 provides "Notwithstanding anything in the Rules contained, the provisions of the Act of the Parliament of Great Britain passed in the session held in the eighth and ninth year of the reign of King William the Third, entitled 'An Act for the Better Preventing Frivolous and Vexatious Suits,' as to the assignment and suggestion of breaches, and as to judgment, shall continue in force in Ontario."

The Act referred to in this Rule is the 8 & 9 Wm. III, c. 11 (b).

(a) See Tuther v. Caralampi, 21 Q.B.D. 414.

(b) Section 8 provides that "In all actions which shall be commenced or prosecuted in any of his Majesty's Courts of record, upon any bond or bonds or on any penal sum, for non-performance of any covenants or agreements, in any indenture, deed, or writing contained, the plaintiff or plaintiffs may assign as many breaches as he or they shall think fit, and the jury upon trial of such action or actions, shall and may assess not only such damages and costs of suit as have heretofore been usually done in such cases, but also damages for such of the said breaches so to be assigned as the plaintiff upon the trial of the issues shall prove to have been broken; and that the like judgment shall be entered on such verdict as heretofore hath been usually done in such like actions. And if judgment shall be given for the plaintiff on a demurrer, or by confession or nihil dicit, the plaintiff upon the roll may suggest as many breaches of the covenants and agreements as he shall think fit; upon which shall issue a writ to the sheriff of that county where the action shall be brought, to summon a jury to appear before the justices, or justice of assize or Nisi Prius, of that county, to inquire of the truth of every one of these breaches, and to assess the damages that the plaintiff shall have sustained

This statute, so far as it required the writ to be executed before the justice of assize or nisi prius, was, in cases where breaches were suggested on the roll after judgment, and perhaps in all cases where no issue was joined, altered by 3 & 4 Wm. IV., c. 42, s. 16, which, to prevent delay, provided that in such cases the damages could be assessed by the sheriff and a jury instead of a judge at assize or nisi prius. Sec. 16 was repealed in Ontario (a) and now the damages may be assessed as provided by Rules 578, 579, 589.

It must be borne in mind that common money bonds do not come under 8 & 9 Wm. III, but are subject to the statute 4 & 5 Anne, c. 16, s. 12.

Common money bonds are bonds with the condition to pay a sum of money at a certain day, upon payment of which the bond is to be void, otherwise it is to be forfeited (b), but if the condition aims at securing any other matter-as the performance of the covenants in a deed, the faithful discharge of an office or the rendering of accounts, upon satisfoction of which the bond is declared to be void-such bonds are called bonds with special conditions (c), and the procedure on such bonds is governed by the 8 & 9 Wm. III, c. II.

thereby; in which writ it shall be commanded to the said justices or justice of assize or Nisi Prius, that he or they shall make return thereof to the Court from whence the same shall issue. at the time in such writ mentioned. And in case the defendant or defendants, after such judgment entered, and before any execution executed, shall pay into the Court where the action shall be brought, to the use of the plaintiff or plaintiffs, or his cr their executors or administrators, such damages so to be assessed by reason of all or any of the breaches of such covenants, together with the costs of suit, a stay of execution of the said judgment shall be entered upon record; or if, by reason of any execution executed, the plaintiff or plaintiffs, or his or their executors or administrators, shall be fully paid or satisfied all such damages so to be assessed, together with his or their costs of suit, and all reasonable charges and expenses for executing the said execution, the body lands or goods of the defendant shall be thereupon forthwith discharged from the said execution, which shall likewise be entered upon record. But, notwithstanding in each case such judgment shall remain, continue, and be as a further security, to answer to the plaintiff or plaintiffs and his cr their executors or administrators, such damages as shall or may be sustained for further breach of any covenant or covenants in the same indenture, deed, or writing contained; upon which the plaintiff or plaintiffs may have a scire facias upon the said judgment against the defendant, or against his heir, terre-tenants, or his executors or administrators, suggesting other breaches of the said covenants or agreements, and to summon him or them respectively, to show cause why execution should not be had or awarded upon the said judgment, upon which there shall be the like proceeding as was in the action of debt, upon the said bond or obligation for assessing of damages upon trial of issues joined upon such breaches, or enquiry thereof, upon a writ to be awarded in manner as aforesaid; and that, upon payment or satisfaction in manner as aforesaid of such future damages, costs, and charges as aforesaid, all further proceedings on the said judgment are again to be stayed, and so toties quoties, and the -defendant, his body, lands, or goods, shall be discharged out of execution as aforesaid.

(a) See C. S. U. C., c. 22, s. 149. R.S.O. (1877) c. 50, s. 152.

(b) Leake on Contracts, 3rd ed., 122.

(c) Leake, 122.

At common law the whole penalty of the bond was recoverable upon breach of any of the conditions in the bond. In fact only one breach could be assigned, upon proof of which the plaintiff was entitled to judgment for the whole penalty (a). Courts of Equity, however, gave relief to the obligor upon his paying the amount really due or upon payment of the damages arising from the breach of the condition. The above statutes aimed at giving courts of law power of granting similar relief in certain cases.

Under the 8 & 9 Wm. III, c. 11, judgment is entered for the whole penalty and costs, but the plaintiff is entitled to execution only for the damages assessed and costs (b). The defendant is not entitled to have satisfaction entered up upon showing payment of damages and cost, because the plaintiff is entitled to the judgment as security for future breaches (c). The statute does not extend to a bond for the payment of a sum certain at a day certain (d); nor a common money bond (e) or a bond for the payment of money at a given rate of interest in the meantime by instalments, with a clause that the whole sum shall be due on default of payment of interest (f); or a bond to replace stock (g); or bonds where the damages assessed are calculated to satisfy the entire condition (h).

This statute did not extend to bail bonds (i); or a replevin bond (j); because courts of law could afford relief in such cases to the defendant without his being compelled to file a bill in equity, and such cases therefore did not fall within the rule which called for the Act.

(a) Steward v. Greaves, 10 M. & W. 715, per Parke B; Hardy v. Bern, 5 T. R. 636. (b) Carlisle v. Hostel, 7 L.J. 99: Wilde v. Clarkson, 6 T.R. 303; Welch v. Ireland, 6 East. 613.

I Wm. Saunders, 1871 ed. pp. 75 et seq.

(c) Hill v. Hill, et al. 1 P.R. 268; Carlisle v. Hostel, 7 L.J. 99;
(d) Murray v. Earl of Stair, 2 B. & C. 82, 89, 3 D. & R. 278;
(e) 4 & 5 Anne, c. 3. Gerrard v. Clowes, (1892), 2 Q.B. 11.
(f) James v. Thomas, 5 B. & Ad. 40. Van Sandau v.

(g) See Savile v. Jackson, 13 Price, 715.

Randall v. Burton, 23 U.C.R. 268
Cardozo v. Hardy, 2 Moore 220.

1 B. & Ald. 214.

(h) Savile v. Jackson, 13 Price, 715; Smith v. Bond. to Bing, 125.

(i) Moody v. Pheasant, 2 B. & P. 446,

(j) Belcher v. Burn, 24 U.C.R., 259; Middleton v. Bryan, 3 M. & Sel. 155.

In an action on a bail bond to the sheriff, the Court may now give such relief as may be just and reasonable (a). A replevin bond is now subject to 8 & 9 Wm. III, c. 11 (b).

Bonds for the payment of money by instalments (c); or upon a written instrument for the recovery of a penalty though not under seal (d); or the payment of an annuity (e); or the performance of an award (ƒ); or the performance of any other specific act (g), are within the Act. The statute also applies to actions for penalties on covenants and agreements in writing, for payment of a penalty on non-performance (1⁄2). Even though a bond on the face of it be a common money bond, yet if there be a concurrent instrument showing that it is in substance a bond intended to secure the performance of covenants within the meaning of the statute, it falls within the statute, although the bond does not refer to the instrument which explains it (i).

It will be noticed that Rule 580 does not provide that all the provisions of 8 & 9 Wm. III., c. 11, shall continue in force, but only such parts of this Act as relate to the assignment and suggestion of breaches and as to judgment. Before the Judicature Act a plaintiff had two courses open to him in suing on a bond within 8 & 9 Wm. III. c. 11. He could frame his declaration claiming the penalty without mentioning the condition in the bond, and without assigning a breach of it, or he could set out the condition and allege breaches. If the breaches were not assigned the defendant could set out the condition in his plea, and plead that he had performed it, or he could plead any answer which would excuse performance of the condition. If the condition and breaches were set out in the declaration, the defendant could plead

(a) Rule 1035.

(b) Rule 1073

(c) D'Aranda v. Houston, 6 C. & P. 511; Preston v. Dania, L. R. 8, Ex. 19.

(d) See Drage v. Brand, 2 Wils, 377.

(e) Walcot v. Goulding, 8 T. R. 126; Tuther v. Caralampi, 21 Q.B.D. 414.

(f) Welch v. Ireland, 6 East. 613; Hanbury v. Guest, 14 East, 401.

(g) Leake, 122.

(h) 2 Wm. Saunders (1871, ed.), 541; Betts v. Burch, 4 H. & N. 506, 510; Ex p. Capper, 4 Ch. D. 724.

(i) Hurst v. Jennings, 5 B. & C. 650; Quin v. King, 1 M. & W. 42.

denying the bond or breaches or both or confessing the bond or breaches or both, and pleading excuse for non-performance (a).

If the plaintiff did not set out the condition and breach. in his declaration, and the defendant pleaded performance generally, then under the statute it was necessary for the plaintiff in his reply to assign the breaches upon which he intended to rely (b). If the defendant denied making the bond or pleaded any other plea in excuse, then after issue was joined the plaintiff was obliged, under the statute, to suggest on the record all the breaches which entitled him to have the bond declared forfeited (c). If the defendant allowed judgment to go against him by default or on demurrer, and the breaches had not been assigned in the declaration or reply, the plaintiff was obliged to suggest the breaches on the record in the same way as when the plaintiff joined issue on the defendants denial (d).

The statute made it compulsory to assign or suggest breaches and damages could only be assessed for breaches assigned or suggested (e). A verdict taken without assigning or suggesting breaches, was irregular and could be set aside (f).

In all cases in actions on bonds within 8 & 9 Wm. III, c. II, whether the defendant appeared or not, the damages should be assessed at the sittings or assizes, and it was irregular to enter up final judgment without assessing damages for the breaches assigned or suggested (g). The defendant could not assign or suggest breaches which occurred after the action. was commenced, but he was obliged to proceed by scire facias upon the judgment (h).

Under the practice as laid down in the Rules, a plaintiff

(a) 2 Wm. Saunders (1871 ed.), 544.

(b) 1 Wm. Saunders, 133; 2 ib. 544.

(c) Homfray v. Rigby, 5 M. & S. 60; Arch. of Canterbury v. Robertson, 1 C. & M. 690; Webb v.

James, 8 M. & W. 645.

(d) Lawes v. Shaw, 5 Q.B. 322.

(e) Walcott v. Goulding, 8 T.R. 126; Welch v. Ireland, 6 East, 613.

(f) McMahon v. Ingersoll, 6 O. S. 301.

(g) Douglas v. Powell, 2 O. S. 87.

(h) Willoughby v. Swinton. 6 East, 550. But see Leach v. Stevenson, 3 O. S. 310.