surety. To an action on a bond similar to the present, the surety pleaded, amongst other things, that there were goods not sold belonging to the collector who had not acted, and who of course was not in arrear; to which there was a demurrer: whereupon Lord Tenterden and Mr. Justice Holroyd are reported to have said, not that the question of whether the collector's goods were sold or not was wholly immaterial; not that the statute was merely directory, and that the commissioners might either sue or sell at their pleasure; but that the goods which ought to be sold before the bond could be put in suit, are the goods of the defaulting collector. Lord Tenterden says: "I am clearly of opinion that the bond might be put in suit without selling the goods of Pepper, who was a mere surety; for, though it appears on the face of the bond that he was a collector also, still he is not the collector contemplated by the act, whose goods must be sold before proceedings are had upon the bond." I repeat that I by no means consider this case as an authority, and that I proceed upon the interpretation of the statute itself; but, at the same time, it is a satisfaction to have even the impression of those judges, who had so confirmed a habit of being right, in favour of my view of the subject. I come now to the second point-of notice, and the question how far any is necessary from the surety to the commissioners, in order to set them in motion. This supposed necessity (as the statute itself is silent upon the subject) seems to proceed upon the superior information of the surety as to the property of the principal, and the duty thereby cast upon him to give notice of the existence of property which might be made available, before he can complain of any omission on the part of the commissioners. This, however, seems to me to depend a good deal upon a mistaken view of the nature and quality of the surety's engagement and obligation, which is not for the payment of a sum of money absolutely upon another's failure (in which 1835. GWYNNE v. BURNELL. Second point.- notice by the commissioners of the existence of lands and goods belonging to Bigg, was not necessary. 8. 9. 1835. GWYNNE บ. BURNELL. case it is perhaps hard to suppose that a man would become bound for another without ascertaining his probable means of payment), but simply for accuracy and fidelity; in which case it might be that one would be bound for another from well-ascertained experience of his conduct and habits. I say might, without pursuing the subject further, because I think an attempt to draw conclusions in this case from general probabilities is utterly precarious and insecure. It seems to me that our business rather is, to examine what and with whom the means of knowledge are according to the provisions of the act of parliament itself. Now, so far as the surety is concerned, the statute, as might be expected, is silent as to recommendation of caution or means of information. He is left to himself. With the commissioners, however, the case is otherwise. 43 Geo. 3, c. 99, By the 9th section, the commissioners are to appoint assessors, who are to act upon oath, and moreover are to be charged and instructed by the commissioners in the requisites for discharging their duty. Further, by the same section, the assessors are to return two or more able and sufficient persons of the places for which the assessors act, to be collectors. It seems therefore to be clear, that, in the due performance of their duty, the assessors are bound to inquire into the sufficiency of the persons returned, including of course their substance and property. And, if the matter had rested here, it might perhaps have been not unreasonable, considered as a statutory mode pointed out to the commissioners of ascertaining by deputed authority the means of the persons to be appointed. But the section goes further, and enacts that the persons so returned by the assessors are to be appointed by the commissioners; and, as persons are presumed to do their duty (and particularly when acting upon oath, for, the commissioners also are sworn), it must be taken, as against the commissioners, that they became acquainted with the property of the persons about to be appointed, and of this collector, Bigg, amongst the rest. And this supposition and construction are the more probable and reasonable, because the collector is not required by the 13th section to find security at all events, but only if required by the commissioners. This therefore seems to imply that the commissioners ought to inquire in each case, or else how can they exercise a discretion as to requiring or dispensing with security in the case of each appointment? and why is notice to be required from the surety to those who by the very supposition of having done their duty have acquired knowledge already? Some reliance has been placed upon that phrase in the 52nd section already commented upon-"wheresoever the same (estates &c.) can be discovered and found;" as if the meaning had been, that such property as the commissioners had not notice of from the surety must be deemed property that cannot be discovered. It seems to me, however, that this expression is merely intended to describe the exertions expected from the commissioners in pursuing property not in the hands of the collector himself, but of others, namely, his heirs, executors, or administrators, wheresoever they can be discovered or found: that is, the commissioners are not to confine their search to what is in the actual possession of the collector, but, if they can, to pursue it elsewhere. But it would, in my opinion, be a most forced and hazardous construction to interpret "discovered" to mean-" whereof the commissioners had notice from the surety." Finding, therefore, nothing in the statute that requires notice from the surety expressly, nor, as I think, impliedly, either from a fair construction of that statute or from the situation of the parties and their relative means of knowledge; but, on the contrary, that the duty of pursuing the property, if any, is plainly and unequivocally cast upon the commissioners; I think the allegation unnecessary; the finding upon that subject in the special verdict immaterial; that the plea contains a 1835. GWYNNE v. BURNELL. 1835. GWYNNE v. BURNELL. First point. sale of the lands and goods of Bigg was a condition precedent to the com mencement of an action against the surety on the bond. good defence to the action without it; and that judgment should be given for the plaintiff in error. Mr. Justice PATTESON.-The principal matters on which the court took time to consider regarded the issues on the 5th and 6th pleas: and the first question which arises is, whether the proviso in the 13th section of the statute 43 Geo. 3, c. 99, creates a condition precedent in favour of a surety, so that no bond can be put in suit against him until a sale has been made of the principal's lands and goods. After an attentive consideration of the whole act, and Opinion that the with all deference to the opinion of those of my learned brothers from whom I differ, I am not able to construe that proviso in any other sense than as creating such condition. precedent. It is introduced in terms for the benefit of the surety, and, as I conceive, must be read in its obvious sense, such as any unlearned person would put upon it who proposed to become a surety and read the act of parliament with a view to discover the nature of his engagement, the liabilities he is to incur, and the means of protection which are afforded him. Now, the act, in s. 13, directs a joint and several bond to be taken from the collector, with sureties, conditioned that the collector shall duly demand the sums assessed, shall duly proceed against defaulters, and duly pay such sums as shall come to his hands. It then directs, that, if he makes default, the commissioners shall prosecute, that is, put in suit, the bond: Provided always, "that no such bond shall be put in suit against any surety or sureties for 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 and powers given to the respective commissioners by this act." What are those directions and powers? They are contained in the 52nd section, which authorizes and impowers (not re quires) the commissioners, in case of default, to make sale in a summary manner of the collector's lands and goods wheresoever the same can be discovered and found. The commissioners, not being required to make such sale, are not bound to do so previous to putting the bond in suit against the collector; for, he is not within the proviso of the 13th section but they may do so if they please, and, if they do, it is plain, that, as the bond is one which comes within the provisions of the statute 8 & 9 Will. 3, c. 11, s. 8, they cannot afterwards recover on the bond, even against the collector, more than what remains unsatisfied after deducting the produce of the sale. Still, it is optional with them to make no sale, and put the bond in suit severally against the collector for the whole deficiency. But the legislature, by the proviso in the 13th section, evidently in tended to put the surety in a better condition than the collector, which he could not be if the proviso be construed as directory only, or if it be construed as applying only to cases where the commissioners had chosen to exercise their power by selling. Indeed, then the proviso would be nugatory; for, it would do no more than the statute of William had already done. The only way, therefore, to give the surety that advantage which the legislature plainly intended him to have, is, to construe the proviso in its obvious sense, viz. that, before the commissioners put the bond in suit against the surety, they shall exercise for his benefit that power which is given them by the 52nd section. It is still optional with them-they may abstain from selling, and enforce the bond against the collector alone: but, if they wish to enforce it against the surety, they must first sell the collector's property. It has been suggested that they might exercise their powers under the 52nd section for the benefit of the surety, after having enforced the bond against him. But I confess I am at a loss to understand how they could be justified in making sale of the D 2 |