liable to pay upon and by virtue of the said writ; that the defendants thereupon justified by affidavits, &c., and afterwards, to wit, on the 3rd of December, 1853, the said recognizance was duly allowed by Draper, J., in Chambers, and was on the same day filed in the office of the Clerk of the Crown at Toronto, and notice thereof given to the plaintiffs, and the said recognizance was enrolled of record, as by the record appears, &c., and said Prosper A. Hurd was duly admitted to the limits of the said gaol, in pursuance of said recognizance and of the statute; yet that afterwards he did not remain and abide at the suit of the plaintiffs within the limits of the said gaol, but departed therefrom without having been released therefrom by due course of law, and the defendants did not pay, &c.; whereby, &c. yet, &c.

Pleas. First, That no Ca. Sa. issued against said Prosper A. Hurd, &c.; concluding to the country. Second, That the said Prosper A. Hurd did remain and abide at the suit of the plaintiffs within the said limits, and did not depart therefrom; to the country. Third plea states that at the time said Prosper A. Hurd was arrested and admitted to the said limits he resided in the said County ot Ontario, within the said limits, and continued to reside there until the said County of Ontario was set apart as a separate county by proclamation, on the 1st January, 1854, issued at Quebec, under and by virtue of which proclamation the said County of Ontario, in the which said Prosper A. Hurd then resided, ceased to form part of the said limits and became a county of itself, and that said Prosper A. Hurd hath ever since continued to abide within. the limits of the said County of Ontario, and hath never departed therefrom, nor was at any time required by plaintiffs to abide within the limits of the said Counties of York and Peel; and that, save as aforesaid, the said Prosper A. Hurd never did depart from the said limits of the said United Counties of York, Ontario and Peel, and that he was by means of premises released from the said limits of the said gaol of the United Counties of York, Ontario and Peel by due course of law, in manner aforesaid: concluding with a verification.

Replication. To first and second pleas, similiters. To

third plea, that said Prosper A. Hurd hath not continued to abide within the limits of the said County of Ontario, as in said third plea alleged, but hath departed therefrom; to the country, and similiter.

At the trial, before Burns, J., at the last fall assizes for the United Counties of York and Peel, the plaintiffs produced an exemplification of the Ca. Sa., also the Provincial "Gazette" of the 31st December, 1853, containing the proclamation of that date, setting off the County of Ontario, and it was admitted that the county was thereby separated on the 31st of December, 1853. The debtor, Prosper A. Hurd, was called by plaintiffs, and said he had been arrested at plaintiffs' suit, and gave bail to the limits; that he resided at Prince Albert, in the County of Ontario; that before the 10th of May, 1854, he had frequently been in Toronto from his said. placc of residence, and after the 1st of January, 1854, but that he had not been out of the Counties of York and Ontario since bailed to the limits.

A verdict was then rendered for the plaintiffs for £1146 158. 11d., subject to the opinion of the court.

In the following term (M. T., 18 Vic.) McDonald, for plaintiffs, obtained a rule on defendants to shew cause why the verdict should not be entered for the plaintiffs on all or some of the issues, or why the postea should not be delivered to them, or why the judgment should not be entered for the plaintiffs for £1146 15s. 11d. on the facts appearing in evidence, &c., pursuant to leave reserved.

Dr. Connor, Q. C., and Vankoughnet, Q. C., shewed cause; they referred to the P. S. 10 & 11 Vic. ch. 15, sec. 5; 3 Vic. ch. 5; 11 Geo. IV. ch. 3; 12 Vic. ch. 78, secs. 3 & 32; 4 Wm. IV. ch. 10, secs. 2 & 3; 14 & 15 Vic. ch. 5, secs. 16 & 12; and contended that the last issue was an immaterial one, and should be found for the plaintiffs-that it turned upon the second; the question being whether the limits of the jail being curtailed by the proclamation of 31st December the debtor Hurd was bound to take notice thereof and to conform thereto by residing within such curtailed limits-that is, within the United Counties of York and Peel, and contended,

First, That the liability of a surety could not be extended.

Second, That they were only bound to a strict adherence to their contract.

Third, That the range allowed the debtor could be curtailed by construction, being against the march of legislation. Fourth, That if the limits mentioned in the recognizance ceased by operation of law the defendants were discharged; that the legislature, by being silent on the subject, did not intend to abridge the liberties as to debtors then enjoying the limits of several united counties when one had been detached; or if a casus omissus, and it depended upon construction, no such effect should be given by the court; that, if no longer gaol of the United Counties of York, Ontario and Peel, defendants are discharged, it being impossible for a debtor to remain within the limits of such gaol if there be no such gaol; or if the old limits as to this suit continued, there was no breach.

That, at all events, the position of the defendants being changed, and the obligation enhanced by the curtailment of the limits, they were discharged by law.

Hagarty, Q. C., and McDonald, in reply, contended the undertaking is not that the debtor should remain within the limits of the three united counties, but within the limits of a certain gaol, which gaol was the gaol of those counties until Ontario was detached, when it became the gaol of the remaining two, and its limits curtailed accordingly; that the debtor, in legal construction and effect, was only bailed to the limits of that gaol for the time being; that the gaol is as it were the point or focus from which the limits are to be determined at any given time, and the debtor was bound to remain and be within them.-12 Vic. ch. 78, secs. 5, 17, 18 & 32; 14 & 15 Vic. ch. 5, sec. 12. That the plaintiffs were clearly entitled to recover on the first and third issues; and the question under the second was, whether after the 1st of January, 1854, the debtor Hurd had remained within or had departed from the curtailed limits; that it was clear he had, after the proclamation, been upon and within such curtailed limits, and had departed therefrom, leaving the only question whether he was, after the 1st of January, entitled to the limits as they were at the time he was allowed the liberty thereof as he had

been before that day.-23 Eng. R. 365. That defendants knew that united counties might be separated and the limits curtailed when they became bound; that it is the same gaol with moveable limits, and they must be held bound to have contracted with a view to the contingency that happened, and should have seen that the debtor conformed to the change in the limits; that the contract is not varied, extended, or abridged, and that the operations of the act of Parliament can make no difference as to the defendants' obligations.Macdonald v. Weeks, 3 U. C. Q. B. R. 441. That no impossibility was created; that the debtor might have withdrawn into the new limits, in prospect of the separation of Ontario, or ought to have done so promptly upon the knowledge of such separation being published, instead of which he went backwards and forwards to and from Toronto afterwards. That the breach is worded in general terms; that the debtor left the limits of the said gaol; that the consideration was the true meaning and effect of defendants' contract.-Barker v. Hogson, 3 M. & S. 267; Wilkins v. Tims, U. C. Chan. Rep. Com. Dig. Con. D. 17; Co. Lit. 206 (a).

MACAULAY, C. J.-The possible hardship of this case upon the defendants induced me at first to suppose that on some legal and sufficient ground or other they must be found not liable. But upon consideration, I am unable to point out what I consider such sufficient ground. The 4 Wm. IV. ch. 10, sec. 3, expressly enacted that the extension of gaol limits thereby established or authorized to be established should not affect or make void any securities already given for the enjoyment of the then existing limits, but should continue in fact, and extend the said newly assigned limits; and I do not see that the same effect ought not to have been given to them by judicial construction had no such enactment been made. The 10 & 11 Vic. ch. 15, restrains the privilege, unless a new security be given under that act.

It is clear, the legislature in extending the limits, did not intend to discharge all existing bail and to compel the sheriff either to commit the parties so bailed to close custody, or take the risk of their escaping from the new limits while he permitted them to enjoy the same.

E

VOL. V.

The first act 11 Geo. IV., ch. 3, authorises the sheriff to grant the limits without being liable as for an escape, and to take bail; therefore the limits so authorized are the limits of his gaol, which limits are co-extensive with his district, county or united counties. The stat. 12 Vic. ch. 78, provided for the separation of united counties before this bail was entered into, the defendants therefore knew the limits were liable to be curtailed as the law then stood, though they could not be extended. Their undertaking was that the debtor should remain and abide within the limits of the gaol, &c., and not depart therefrom. Now, after the county of Ontario was detached, which was no act of the plaintiffs, the debtor, in fact, not only did not remain and abide within the limits of the gaol, but did depart therefrom. To ascertain the limits we must first ascertain the gaol of which they are the limits: that gaol is situate in the county of York, the senior of the united counties-it is then the limits thereof that are intended. It is contended the recognizance means the limits at the time it was acknowledged and not for the time being; if it had said the debtor should remain and abide within the limits of the (then) three united counties, it would have been another thing; then the limits of the three united counties, and not the limits of the gaol would have been the test; but it is not so: and I think, limits of the gaol, mean of the particular gaol in the city of Toronto, &c., for the time being, seeing that they were liable to vary. It was not impossible for the bail to have watched a proclamation and provided against the change by surrendering their debtor, or by seeing that he kept within the limits when curtailed; the debtor was in their custody and the sheriff cannot be made liable as for an escape, as power; he might be perhaps if the defendants were discharged and exonerated by reason of the change.

Whether the defendants could have rendered the debtor within eight days after service of process, or within a reasonable time after the county of Ontario was detached are not questions now before us; they certainly might have done so before the proclamation issued, though it did not afford time. to have done so between its issue and the time appointed for the separation, and I cannot see my way in holding that because the debtor was at first entitled to the county of