to the common gaol or house of correction, there to be imprisoned, with or without hard labour, for a period not exceeding three months. On a conviction under the latter section an appeal is given to the next quarter sessions.

"Against both these sections objections have been raised, but it is more especially against the 14th that objection and complaint have been urged."

The Commissioners then proceeded to summarise the evidence that had been laid before them, according to the classification previously mentioned, and then proceeded :

"From the evidence that has been given before us, it appears that the complaints which are made to the Act are to those parts of it which are embodied in the 4th and 9th sections, and the 14th section respectively.

"The objections made against the 9th section are not so much to the redress awarded to a party complaining of breach of contract, for it is not, and cannot be denied, that the man who without just cause breaks a contract he has entered into should make compensation to the opposite party, as to the power of the magistrate to impose a fine under it, and to order imprisonment as a means of enforcing any order for the fulfilment of the contract, or for the payment of money which he has directed to be paid.

"With reference to the objection to the power to imprison, it was said that, as the relation of employer and employed arises entirely out of contract, and as, in every other case of contract, the party complaining of a breach of it, and having damages awarded to him, and obtaining judgment, can only obtain an order enabling him to take the party liable to pay such damages in execution if the latter has means to pay and will not, the same rule should

apply in the case of the workman failing to perform his contract and ordered to pay money in compensation: and that unless such a man had the means of payment no imprisonment should follow. Why,' it is asked, 'if the breach of any other contract, however flagrant, leads to no imprisonment, should a breach of this particular contract be attended with that consequence ?'

"It is, in the first place, to be observed that as regards orders for the fulfilment of the contract under the 9th section, the basis of the argument fails. The mode in which courts having jurisdiction to order specific performance enforce their authority in case of disobedience is by imprisonment. There is, therefore, nothing exceptional in the application of this remedy in case of disobedience here.

"As regards imprisonment in case of non-compliance with orders for payment of money, it must be admitted that the power to imprison is more or less anomalous.

"The relation of master and servant in every form of it, and not the less in that form which relates to employers of labour and their artificers and workmen, arises out of contract. By the law of England a contract gives to the party with whom it is made a right to have the contract performed, and a breach of it by non-performance consequently becomes a wrong. But breach of contract involves no criminality. It is matter of civil remedy only, either by an action to recover damages, or by the order of a court of competent jurisdiction for the specific performance of the contract, where damages will not afford an adequate remedy, and the contract is still capable of being fulfilled; and in this respect there is no difference in principle between the contract of hiring and service in general and any other con

tract. Nevertheless, criminality has been made by the statue law of England to attach to the non-performance of the contract of service in respect of hirings of this particular class; and though by the Master and Servant Act of 1867, the criminal character of the breach of such a contract has, in cases falling under the 9th section, been taken away, imprisonment still remains, while on the non-payment of damages for the breach of any other contract it would not, in the absence of proof of means of payment, be available.

"It must be admitted that this distinction is to a certain extent anomalous. If defensible it can only be so as an exceptional case, on the ground of necessity.

"That the breach of such a contract on the part of a person in the employ of another may involve a serious, and where it is accompanied by the concurrent action of others a ruinous, loss to the employer, beyond the immediate loss arising from the loss of profit on the work contracted for, by exposing him to liability for the breach of some contract into which he may have entered, while the loss to the workman will be limited to a temporary loss of employment, is obvious. It is equally so that the remedy by an action for damages by the employer by reason of any such loss, must be nugatory as against the workman, who, in the great majority of instances, has no resources beyond the wages he earns by his labour, nor has he property by seizure of which the damages awarded could be realized.

"Under these circumstances it is obvious that an order for the specific performance of the contract, without the alternative of imprisonment on default of compliance would be wholly ineffectual, and that to take away the power of imprisonment on non-payment of compensation awarded for

breach of contract, would be to enable the workman to break his contract with absolute impunity, while the means possessed by the master would, as a rule, insure to the workman, when the complaining party, the payment of damages awarded to him. At the same time it is to be observed that if this should not prove to be the case the master is equally liable to imprisonment.

"Nor is it enough to say that, in the case of ordinary contracts, if the party against whom damages are awarded for breach of contract should prove to be without means to satisfy the plaintiff, or should become insolvent and unable to pay, the latter remains without redress. In the great

majority of cases, damages for which a verdict has been given are in fact recovered. The cases in which the defendant proves unable to satisfy the tion. Here it is the other way.

judgment form the excepBeing, generally speaking,

dependant on his labour alone, the workman disposed to leave his contract unfulfilled, can only be restrained from doing so by being made liable to imprisonment.

"It was, no doubt, from such considerations that the older statue law made the breach of such a contract by labourers, artificers, and others, employed in particular trades, an offence.

"We entirely concur in the view that the mere breach of contract, such as is contemplated by the 9th section of the Act, should be divested of all character of criminality, and we therefore recommend that the power of the magistrate to impose a fine under that section, where compensation cannot be assessed, should be taken away. If the complaining party has sustained or will sustain loss, compensation can be assessed; if he has not, he has no claim to damages, and the

infliction of the fine can only operate by way of punishment, which pre-supposes a criminal act, and not a claim of damages arising from breach of contract.

"Upon the same principle we are decidedly of opinion that, imprisonment being here admissible as a civil remedy only, a party ordered to be imprisoned should not be committed to the house of correction, where, of course, the restraint is greater and the discipline far more strict, but to the prison, or department of a prison, to which persons imprisoned for debt are usually committed. But, for the reasons we have already given, we cannot advise that imprisonment in the last-mentioned form should be done away with. It is a remedy for civil wrong long known to the law, and though abolished practically as between judgment creditor and debtor by recent legislation, except under special circumstances, we think that, inasmuch as its abolition in the particular class of cases we are dealing with would afford impunity to men if disposed to break their contracts without just cause, often to the serious damage of their employers, it should, in cases falling within the 9th section of the Act, be retained.

"In another respect, it appears to us that the 4th and 9th sections might be amended with advantage. They are made to embrace cases of misusage, misdemeanor, misconduct, illtreatment, or injury to person or property. But whatever can properly be called misdemeanor belongs to the domain of the criminal law, and should be left to the ordinary tribunals. In like manner the protection of person or property may well be left to the ordinary law. The jurisdiction here conferred should, in our opinion, be limited to matters arising