Pursuant to the terms of an order for a stay of proceedings under the judgments of the Supreme Court, the respondents filed bonds, whose condition was that the obligation should be void if special leave to appeal to the Privy Council should not be gianted and the respondents should pay such damages and costs as has been awarded. The appellants made application delivery out of the bonds, alleging and establishing by affidavits that leave to appeal had been refused and that the debt and costs were unpaid.
Held, that it was not incumbent upon the apoellants to shew that they had exhausted their remedies against the respondents by execution before taking any step towaids recovery upon the bonds. MOTION before a Judge in Chambers for delivery out of bonds, to put the same in suit, securing payment of the debt and costs as awarded by the judgments of the Supreme Court, these bonds having been filed as a term of obtaining a stay of proceedings to permit of applica- *PRESENT:-Anglin J. in Chambers.
tions for special leave to appeal being made to the Judicial Committee of the Privy Council.
The material facts of the case are stated in the judgment now reported.
Harold Fisher.for the motion.
Alex. Hill contra.
J.-As a term of obtaining a stay of proceedings under the judgments of this court in these cases to permit of applications for special leave to appeal being made to the Judicial Committee the defendants filed bonds securing payment of the debts and costs.
.The condition of each of the bonds so filed is that if special leave to appeal should not be granted and the defendants should pay such damages and costs as had been awarded the obligation should be void, otherwise it should remain in full force and effect.
The plaintiffs now apply on notice for delivery out of these bonds to put. the same in suit. They allege and establish by affidavits that special leave to appeal .to the Privy Council has been applied for and refused and that the debts and costs acknowledged by the bonds to have been awarded to the plaintiffs remain unpaid. In opposing the application counsel for the defendants contends that it is incumbent upon the applicants to shew that they have exhausted their remedies against the defendants by execution before taking any step towards recovery upon the bonds. With that contention I am unable to agree.
The condition upon which the obligation under the bonds was to be avoided has not been fulfilled.
The default necessary to establish the liability of the surety, according to its terms, has been proved, subject, of course, to any other defences that may be open. Daniels Chan. Practice, 6 ed., p. 1931, 8 ed., p. 1624 and note (t). To require the judgment creditors to issue executions and obtain returns of nulla bona as a condition of permitting them to put the bonds in suit might involve the incurring of needless expense and entail prejudicial delay. Any possible interest of the surety can be fully protected by the exercise of the Co.
discretion of the court which'may try any actions upon the bonds over the costs thereof.
The motion should be granted and the costs of it, so far as I have power so to direct, should be costs in the actions which it is proposed to bring.
Motion granted.