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GWYNNE v. BURNELL and Another. May 23rd.
This was an action of debt on a bond entered into by By the statute
a 43 Geo. 3, c. 99, the defendant as surety for one Richard Bigg, a collector 8. 13, the district collectors of as- of assessed taxes for the year 1828, ending in 1829. The sessed taxes are required to give
trial took place before Mr. Justice Alderson, at the Sitsecurity to any tings at Guildhall after Trinity Term, 1831, when a verthe commission- dict was found for the defendant below (the plaintiff in ers of taxes, for their duly pay- error), with leave to the plaintiffs below to move that that ing such monies as shall
verdict might be set aside, and a verdict entered for them come to their
for the penalty of the bond, and nominal damages for the hands: and by 3 Geo. 4, c. 88, detention of the debt, together with the sum of 6931., or s. 2, reg. 1, art. 8, it is provided such part of that sum as the court might think them entithat “ all bonds, tled to, as damages for the breaches of the condition of contracts, and securities to be the bond, in Bigg's not duly paying over to the receiverentered into with or taken general the monies collected by him for the above year. from the receivers-general
The plaintiffs below accordingly moved to have the verdict to be appointed, or with or from any other person or persons to be appointed under that act, and their respective sureties, to remit the monies arising by the taxes granted by the said acts (the acts relating to the assessed taxes), or any of them, or any other duties or sums of money under the management of the commissioners for the affairs of taxes, shall be to his majesty, his heirs, and successors :"Held, that a bond given by a collector and his sureties under the former act, was properly given to the commissioners; and that the bond was good notwithstanding it was conditioned to pay the monies collected to the receiver-general, and also to the commissioners, though by the 43 Geo. 3, c. 99, and the 3 Geo. 4, c. 88, the collectors are required to pay over such monies to the receivergeneral only.
Held also, that payment by the collector to the receiver-general of monies received by him to the account of a different year from that for the service of which they were collected (in order to make up deficiencies in a preceding year's account), was a breach of the condition of the bond for duly paying over the sums collected.
The 13th section of the 43 Geo. 3, c. 99, contains a 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 sale of the lands, tenements, goods, and chattels of such collector or collectors, in pursuance and by virtue of the directions and powers given to the respective commissioners by the act:"-Held (on error in the Exchequer Chamber), that the sale of the lands and goods of the collector was a condition precedent to the commencement of an action against the surety on the bond-Lord Abinger and Mr. Baron Parke dissenting.
Held also, that, to make such sale a condition precedent, the surety is bound to aver and to prove notice to the commissioners, or at all events knowledge in them, of the existence of the lands and goods—Lord Denman and Mr. Justice Williams dissenting.
The bond was conditioned for payment to the receiver-general of the sums collected upon the days and at the times appointed by the acts. No times are in fact appointed by the acts; but the receiver-general is empowered to appoint the times. There was no averment in the pleadings that any times were appointed: but, the defendant having pleaded general performance, and one of the breaches in the replication being that the collector did not pay to the receiver-general the monies collected at the times by the acts appointed, on which there was a special finding, that he did: -Held, that it must be presumed that the receiver-general had appointed some times of payment.
entered for them; when it was ordered by the court, with the consent of the counsel on both sides, that the final entry of the verdict and judgment should abide the opinion of the court upon a special case, of which the following is all that is material to the present inquiry:
The plaintiffs declared upon the bond, which was dated the 27th August, 1828, as having been entered into by the defendant with Richard Bigg and one Samuel Cardoza, jointly and severally, to the plaintiffs below, as three of the commissioners under the land-tax and assessed-tax acts for the Tower division, within the county of Middlesex, in the penal sum of 4,0481. To this declaration the defendant below pleaded—First, non est factum, after craving oyer of the bond, the condition of which was set out as follows:-“ Whereas the above-bounden R. Bigg hath been duly nominated and appointed by the commissioners appointed for putting in execution the said acts of parliament within the said division and county, one of the collectors of the rates and duties above mentioned, rated, laid, and assessed upon the parish of St. Matthew, Bethnal Green, in the Tower division, and county of Middlesex aforesaid, for the year 1828, ending respectively the 25th March and the 5th April, 1829. Now, the condition of this obligation is such, that, if the above-bounden R. Bigg do and shall well and faithfully demand and collect all and every the sum and sums of money in the said assessments charged and specified, of the respective persons from whom the same shall or may be payable, and shall and do, in case of non-payment thereof, duly enforce the powers of the said acts against such persons who may make default therein; and also well and truly pay or cause to be paid unto the receiver-general of the said taxes, rates, and duties for the said county of Middlesex, all such sum and sums of money as shall come to the hands of the said R. Bigg as such collector, upon the days and at the times by the said acts appointed for the payment thereof, and
according to the true intent and meaning of the said acts; and also do and shall, when thereunto required, at such times and places as shall be appointed for that purpose, give and render, or cause to be given and rendered, unto the commissioners appointed or to be appointed to put the said acts in execution, or any two of them, a just and true account in writing of all such sum and sums of money which he the said R. Bigg shall have collected and received by virtue or on account of the said assessments, and shall forthwith
and deliver the same unto the said commissioners, or any two of them, or unto such person or persons whom they or any two or more shall appoint: then this obligation to be void; or else to remain in full force and effect."
The execution of the bond was admitted at the trial, subject to two questions reserved by the learned judge first, as to the necessity of a stamp (a)—secondly, whether the bond was valid, not being made to his majesty, his heirs and successors, pursuant to the statutes, particularly the 3 Geo. 4, c. 88, s. 2, reg. 1, art. 8.
The second plea was a general plea of performance of the condition of the bond; on which the plaintiffs below in their replication assigned several breaches, the third of which was, that Bigg had not duly paid over to the receiver.general the monies received by him as collector of the assessed-taxes for the said division, in respect of the rates and assessments mentioned in the condition, viz. for the year 1828-9.
On this issue was taken by the defendant below in his rejoinder.
The issues on the third and fourth pleas, that the bond was invalid on the ground of supposed fraud and misrepresentation-on the ninth, that Bigg was not duly nominated to act as collector-on the tenth, that the commissioners had not delivered to Bigg duplicate assessments,
(a) Which was negatived by the court below, and not now contested.
with a warrant for collecting them-on the twelfth, that 1835. Bigg had absconded to avoid the payment of the arrears due—were all found for the plaintiffs below (6).
BURNELL. The fifth plea stated that Bigg did demand and collect
Fifth plea. all the assessments, and that, from that time to the time of exhibiting the bill, he had lands, goods, and chattels within the jurisdiction of the commissioners, of which they had notice, and which might have been seized and sold by them, but which they neglected to sell. Replication- Replication. that Bigg did not faithfully demand and collect all the assessments ; that he had no lands within their jurisdiction which the commissioners could seize and sell, of which they had notice; and that all the goods and chattels of Bigg within their jurisdiction, and of which they had notice, were seized and sold, and were inadequate to the satisfying the deficiencies of Bigg. Rejoinder-that, after the Rejoinder. receipt of large sums of money by Bigg, and his omission to pay the same to the receiver-general, Bigg had lands within the jurisdiction of the commissioners which they might have seized and sold, but that they neglected so to do. Issue.
The sixth plea was similar to the fifth, only leaving out Sixth Plea. the mention of lands, and stating that Bigg had goods after default in payment of the monies collected, of which the commissioners had notice. Replication—that the com- Replication. missioners did seize all the goods and chattels of which Bigg was possessed within their jurisdiction, and of which they had notice, which, as before alleged, were insufficient to satisfy the deficiencies of Bigg. Rejoinder-that Rejoinder. the commissioners did not seize and sell all the goods and chattels of Bigg within their jurisdiction, in manner as the plaintiffs had in their replication alleged. Issue.
(6) The plaintiffs below had previously obtained judgment on demurrer to the last two pleas. See
Collins v. Gwynne, 5 M. & P. 276,
BURNELL. Seventh Plea.
The seventh plea stated, that, after Bigg made default, he had goods and chattels within the jurisdiction of the commissioners, which they might have seized and sold, and which would have been sufficient to satisfy all Bigg's deficiencies, but which they neglected to do, as also to imprison Bigg himself; and that no receiver-general or deputy receiver did or would call upon Bigg to make payment of all sums received by him. Replication—that the commissioners did seize and sell all the goods and chattels of which Bigg was possessed within their jurisdiction, and that the same were insufficient to satisfy his deficiencies; and that the receiver-general of the rates, duties, and assessments for the county of Middlesex did call upon Bigg as such collector to make payment of all sums received by him of the said duties; and that Bigg fled and absconded to places to the receiver-general, deputy receiver-general, and the commissioners unknown, to prevent their imprisoning him. Rejoinder-that the receivergeneral did not call upon Bigg as such collector to make payment of all sums of money received by him of the said duties, nor did Bigg before they could have imprisoned him abscond and fly to places to the receiver-general, deputy receiver-general, and the commissioners unknown, in manner as the plaintiffs had in their replication alleged. Issue.
The eighth plea stated that the commissioners did not, at the times in the statute mentioned, call before them the said Bigg, and examine him upon oath or affirmation, and assure themselves of the sums paid to him as such collector, or make any order thereon for the payment of the same to the receiver-general. Replication that the commissioners did call before them and examine Bigg, the collector, upon oath or affirmation, and assure themselves of the sums paid to Bigg, and did make order thereon for the payment of the same to the receiver-general, on the day and time appointed for receiving the same. Rejoinder