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obligatory upon them to seize, yet I think that the breach of their duty in this respect is no answer to the action.

First, it seems to me to be discretionary in the commissioners to seize; and this proviso does not operate until they do. The clause in question requires sureties to be given for the persons presented to the commissioners as collectors, if the commissioners require it; and, in case they are not given, authorises the commissioners themselves to appoint collectors who can give security. So far the enactment gives a discretion to the commissioners, which, however, is qualified by the fourteenth section. It then proceeds to order, that, in case of failure, or of default, by the collector, every bond shall be prosecuted by the commissioners. In that respect the clause is obligatory. Then comes the proviso, that no such bond shall be put in suit against any surety or sureties, for any deficiency, other than what shall remain unsatisfied, after the sale of the lands, tenements, goods, and chattels of such collector, in pursuance and by virtue of the directions and powers given to the respective commissioners by that act. The directions and powers referred to are those contained in the fiftysecond section, which provides, that if a collector is guilty of a default in paying, the commissioners are authorised and empowered (not commanded) to imprison the person, and seize and secure the estate, real and personal, of such collector, to him belonging, or which shall descend or come into the hands or possession of his heirs, executors, or administrators, wheresoever the same can be discovered and found: if they seize, they who do so are also empowered to appoint a meeting of the commissioners of the division, &c.; and the commissioners present at that meeting, if the monies are not paid, are empowered and required to sell and dispose of the estates so seized and secured, and apply the money

to satisfy the arrears, and the costs and charges. Now, it is quite clear, under this clause, that it is purely discretionary, whether the commissioners seize the estate, real and personal, or not; they have the power of determining whether it is worth while, from the nature of the property, its value, the difficulty of obtaining and converting it, and the expense to carry their powers into effect. Ought we not, therefore, to read the proviso in the thirteenth section, which expressly refers to the directions and powers in the fifty-second section, and which are undoubtedly discretionary, just as if the former section had provided that the bond should not be put in suit for any deficiency, other than such as remained after sale of the estate, real and personal, pursuant to the discretionary power in the commissioners; that is, if the commissioners should think fit in their discretion to seize the estate, real and personal? If not, this consequence will follow; that the commissioners who have a discretion by the fifty-second section, and that, no doubt, for the benefit of the parish at large, and the public and all persons interested, to seize or not, are yet compellable to do so, under the penalty of not being able to sue on the bond for the deficiency if they do not; so that if they, in their discretion, think the public interest, and the interests of all, best consulted by not incurring the expense of a seizure of property of no value, the public must suffer by losing the remedy on the bond against the sureties; for it is, in truth, their loss. If the commissioners took this bond, and were acting for their own benefit, there might be some reason for saying, that, if they did not choose first to take the estate of the principal, they should not sue the surety; but if they act as they do, not for themselves, but for the public, it appears to be impossible to preserve the discretion given by the fifty-second section without qualifying the thirteenth section, and making the proviso

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therein a contingent direction or order not to sue, if the discretion should be exercised, until the sale should have been completed.

I am therefore of opinion, that this proviso in the thirteenth section has no operation, unless the commissioners choose to seize under the powers of the fiftysecond section. But if this construction be not correct, and the proviso is obligatory on the commissioners in all cases, then arises the third question: Is the compliance with the enactment a condition precedent, and the noncompliance a bar to the action? I must say I am of opinion that it is not. In the first place, the language of the proviso is, not that no action shall be maintained on the bond, but it comes by way of qualification on the former part of the clause, which commands the commissioners to prosecute the bond on any failure or default. It is, therefore, a command to them not to put the bond in suit in the particular case contemplated by the proviso, but it is no more. Had the legislature intended to make the noncompliance with this regulation an absolute bar, I cannot help thinking they would have used different language. But it is not on the use of the precise expressions that I place so much reliance, as on the consideration of the consequence to which the construction contended for would lead. The consequence would be, that no action would lie against a surety for the benefit of the public, if the collector had any real or personal estate, of any description, of any value, if the commissioners knew of its existence, wherever such estate might be, and whether it was in reversion or remainder, and whether he ever had the actual possession or not; for, by the fifty-second section, all which comes to the hands or possession of the heirs, exécutors, or administrators, may be seized;—whatever difficulty the commissioners might have in seizing or securing it, or rendering it available; and whatever time it might

require to reduce it into money, still it must be done before the sureties can be sued; and thus the parish, it may be well conceived, would in many cases lose the benefit of the bond altogether. On the other hand, what is the consequence of holding that the proviso, though obligatory on the commissioners, is not a condition precedent to the right of action? The parish and the public lose nothing; their remedy is unimpaired.

But it is said that the clause is introduced for the benefit of the surety, as unquestionably it is, and that he will gain nothing unless this construction prevails, because he can have no remedy to compel the commissioners to seize and sell, either at law or in equity.

If the proviso be obligatory on the commissioners (and I am now arguing on that supposition, for if it be discretionary there is an end of the case), I cannot see why a mandamus would not be granted to compel them to perform their duty to the surety, as it unquestionably would, on behalf of the parish, to compel them to sue on the bond in pursuance of the direction in the thirteenth section; nor do I know why he might not have a remedy in equity against the commissioners to oblige them to sell and apply the proceeds in his aid. But supposing it were not so, and the surety has no legal or equitable remedy to enforce the obligation, does it follow that he has no benefit from this proviso? Certainly not; he has this benefit, that they have a duty imposed on them to seize and sell in relief of himself: this is the same benefit that any one has from a duty imposed on public functionaries who are to be expected honestly to perform their duty; and if they do not, from corrupt motives, he has the same remedy as against all other public functionaries similarly situated.

It is by no means any impediment to construing a clause to be directory, that if it is so construed there is no remedy for noncompliance with the direction. Thus

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the statutes which direct quarter sessions to be held at certain times in the year are construed to be direc tory (a), and the sessions held at other times are not void; and yet it would be difficult to say that there would be any remedy against the justices for appointing them on other than the times prescribed by the statute.. From the nature of the enactments, the Courts have rightly concluded that, though the legislature intended the precise periods to be fixed, they did not intend the consequence of a deviation to be that the appointment should be void. In like manner, if the legislature did mean to oblige the commissioners to seize for the benefit of the surety, and not to bring the action until they did, I think it may be concluded that they never intended that such action should be altogether nugatory if brought.

I have treated this question as one arising for the first time; and I think I am warranted in so doing, for the dicta which have been cited by my brother Williams, from Peppin v. Cooper, cannot be considered in the light of an authority upon this point.

For the reasons above given, I think the fifth plea does not, in substance, contain any matter in bar of the action. The like observation applies to the sixth and twelfth pleas, on which the other issues are raised; and more particularly the twelfth, which does not aver that the Plaintiffs below had had notice that Bigg had any property.

I am, therefore, of opinion that the judgment of the Court of Common Pleas ought to be, in substance, affirmed; though I think the mode of entering up judgment on the twelfth, thirteenth, and last issues is, in form, wrong, and that the judgment should in that respect be reversed; the verdict on those issues being

(a) Rex v. Justices of Leicester, 7 B. & C. 6.