Page images


1836. lowing manner-"that Bigg did not faithfully demand and

collect all the assessments; that he had no lands within GWYNNE

their jurisdiction which they could seize and sell, of which BURNELL.

they had notice; and that all the goods and chattels of the said Bigg within their jurisdiction, and of which they had notice, were seized and sold, and were inadequate to the satisfying the deficiencies of Bigg." And in my view of the case it is not necessary to advert further to the

pleadings. Special finding With respect to the special verdict, the material facts

found are, "that the said R. Bigg had lands or houses after his alleged default in paying the latter sum, of the value of 1211., which could have been seized and sold by the commissioners under the statute 43 Geo. 3, c. 99, s. 52; and that he had goods after such default of the value of 2001., which could have been seized and sold by the commissioners." And also“ that the said commissioners had not notice that Bigg was possessed of any houses, lands, or goods at the time of his default.” The jury then find what I admit falls very short of notice that the said Bigg was possessed of goods.

Two questions arise, depending upon the construction of the above-mentioned statute—first, whether the sale of the lands and goods of Bigg be a condition precedent to the commencement of the action against the surety-and next, whether notice by the surety of the existence of such

lands and goods to the commissioners be necessary. First point.

The first, and, as it seems to me, the principal question Opinion that the arises upon the construction of the 43 Geo. 3, c. 99, s. 13, and goods of which, after providing that the collectors, if required, shall Bigg was a condition precedent find good and sufficient security in the manner prescribed,

contains this proviso—“ Provided always that no such an action against bond shall be put in suit against any surety or sureties for the surety on the bond. any deficiencies other than what shall remain unsatisfied

after sale of the lands, tenements, goods, and chattels of such collector in pursuance and by virtue of the directions

to the commencement of


and powers given to the respective commissioners by this 1835. act." Upon the construction of this clause, opposite in

GWYNNE conveniences have been suggested in the course of the argument.

On the one side it has been said, that, if the sale Observations on above alluded to be held a condition precedent, the conse. the 43 Geo. 3,

c. 99, s. 13. quence must be that a remedy intended for the relief of the parish may be suspended or wholly lost, whilst the commissioners are engaged in an endless and fruitless inquiry into the state of the collector's possessions: and, on the other, that, if it be merely discretionary with the commissioners whether they sue first and sell after, or do not sell at all, the surety may be harassed with the costs of an action, whilst the collector is at the same time in possession of property ten times more than the amount of his arrears. These extreme cases seem to be pretty nearly balanced, and are not very safe criteria for ascertaining the true decision; though it is observable that the firstmentioned inconvenience seems to have had a very full, if not somewhat undue share in producing the judgment of the court below. The true construction of a statute is, to give effect to the intent and object of the legislature as far as it is possible, and, if there be provisions seemingly in. consistent or contradictory, to reconcile them so as to further that intent. This is not only the proper mode of construction in this instance, but is so generally; and the proposition, I presume, needs only to be stated in order to be assented to. Comyns's Digest, Parliament (R. 10). Now, it seems to me hardly doubtful but that the provision in question was introduced expressly for the protection and benefit of the surety. To me, at least, its introduction is unintelligible except that be the meaning. The language, with the exception of the expression "put in suit” (upon which I shall observe presently), is perfectly plain and appropriate. This object also, it is to be observed, is quite consistent with the position of the surety, and his relation to the principal; because, neither from the general nature




of the bond, nor that relation, is there anything to raise
the slightest inference that the former should become re-
sponsible except upon the failure of the latter: the nature
of the thing implies it. The position also of this proviso
is quite consistent with this view of the subject. In the
earlier part of the section the liability of the surety is des-
cribed, and then comes this proviso containing the restric-
tion upon that liability: and, except it was intended to af-
ford some special protection to the surety, why, it may be
asked, was it introduced at all? It seems to me, therefore,
that we have the intention of the legislature clear and ex-
plicit to relieve the surety. Except, therefore, the appli-
cation of the funds (lands and goods) of the collector be
deemed a condition precedent to calling upon the surety
to make good “the deficiency," which I think (with that
hesitation, however, which becomes one when aware of
opposite opinions) is the true construction, no effect what-
ever is given to this part of the section, introduced ex-
pressly for the surety's protection; and, so far as he is con-
cerned, it might as well be expunged from the statute al-
together. This observation is strictly true, supposing the
commissioners not to be compellable to levy contributions
in aid of the surety upon the property of the collector after
the former has been sued for arrears. And it is true to a
considerable extent, if (which may be questionable) the
commissioners may be compelled by mandamus, or other-
wise, to reimburse the surety by sale &c. up to the extent
of the costs of the action upon this supposition rightly
brought against the surety in the first instance. And this,
which I confess seems to me to be the obvious meaning of
this proviso, is rather confirmed by attending to the parti-
cular expressions in which that meaning is conveyed. The
words are—“no bond shall be put in suit for any deficiency
other than what shall remain unsatisfied after sale of the
lands, goods, &c." of the collector: that is, no bond shall
be put in suit for the arrears of the collector, but only for

[merged small][ocr errors]




the deficiency, if any, after his property has been applied, as in reason and justice it ought to be, to the discharge of those arrears as far as it will go. And how is it possible to say that the arrears of the collector, and the arrears minus the proceeds of all his property, mean the same thing? Observations have been made upon the words "no bond shall be put in suit,” as if they were distinguishable from "no action shall be brought" or "no proceedings shall be had or taken.” I confess, however, that I am unable to comprehend any such distinction, and cannot but think that the three forms of expression above mentioned are perfectly equivalent both in a legal and a popular sense. About the latter, I presume there can be no doubt; and, as it seems to me, there is scarcely less as to the former. In the case of Pepper v. Cooper, 2 B. & A. 431, to a plea similar to the present, that the collector had goods &c. at the commencement of the action, the replication was “ that there were not goods &c. of the collector sufficient to satisfy the deficiency for which the bond had been put in suit;" which latter words seem to me of necessity to have the same meaning asm" action had been brought.” When there. fore I see a provision expressed in plain terms, and, I think, with an obvious meaning, in perfect conformity to the situation and rights of the parties (principal and surety), we are bound, as it seems to me, to give it effect, except there be collected from some other part of the statute a decisive reason to the contrary. Nor do I think that there is anything in the 52nd section, to which reference has been frequently made, inconsistent with the view which I have taken. It will be observed that the two sections (the 13th and 52nd) are directed to very different objects. The former describes, as I have said, the liabilities of the surety, and, in the proviso, restricts them in the manner already alluded to: the latter gives powers to the commissioners both over the person and the property of the collector; and all these seem quite consistent with and in furtherance of




what I understand to be the object of the proviso. Powers are given to the commissioners to get at funds which are to be applicable in ease of the surety; but the question of priority, that is, whether seizure and sale should precede suit, seems to me not to be necessarily involved in considering the effect of the 52nd section. It is true that different expressions are used in different parts of the section: the words first used are, "authorized and impowered;" then, “impowered;" and lastly, "impowered and required.” And some reliance has been placed upon the latter expression, "required,"not being employed instead of “ authorized and impowered," in that part of the section where the seizure of the estate real and personal first occurs. I must own that this seems to me to be a very doubtful and precarious reliance. I very much doubt, and in truth do not believe, that the precise force and effect of these expressions were weighed with critical nicety before they were introduced into the clause: that they were used indiscriminately and at random, I think much more probable. It is observable also that the seizure of the person of the collector is first named in this section, to which object the terms “authorized and impowered” are properly applicable; and this perhaps may account for the omission of the word (of supposed superiority in pressure and cogency) “ required." Upon the whole, therefore, bearing in mind the distinct purposes of the two sections, I think there is nothing in the latter to supersede what I consider to be the plain intent and meaning of the proviso in the former.

Before I quit this part of the subject, I cannot help observing that too little importance has been attached to the case I have already referred to, of Pepper v. Cooper.

It is certainly true that the very point now under consideration was not before the court; but it is equally so that the whole statute, and this very question, were brought under their notice. In that case, two collectors were appointed, though one only acted, and the other was in truth only a

Remarks on Pepper v. Cooper.

« PreviousContinue »