money

1835.

GWYNNE

v.

BURNELL.

that the commissioners did not at the times mentioned in the replication, and as often as was necessary, call before them the said Bigg, and examine him upon oath or affirmation, and assure themselves of the sum or sums of paid to Bigg as such collector, nor make any order therein for payment of the same to the receiver-general. Issue. The eleventh plea stated, that, although a large sum of Eleventh plea. money came to the hands of Bigg, the receiver-general did

not call upon and hasten him to make payment of the same upon the days and at the times in the said acts provided and appointed. Replication-that the receiver-gen- Replication. eral did call upon and hasten Bigg to make such payment upon the days and at the times in the said acts provided and appointed: whereupon issue was joined.

The material issues for the consideration of the court were-First, whether Bigg had duly paid to the receivergeneral all such sums as had been collected by Bigg, according to the true intent and meaning of the assessed-tax acts, for the year 1828-9—Secondly, whether Bigg had lands which the commissioners could have seized and sold under the 43 Geo. 3, c. 99, s. 52.-Thirdly, whether Bigg had goods which the commissioners could have seized and sold.-Fourthly, whether the commissioners had examined Bigg on oath as to the sums which he had collected, and made any order for the payment of the same to the receivergeneral, according to the 39th section of the 43 Geo. 3, c. 99.-Fifthly, whether the receiver-general did call upon and hasten Bigg to make such payment upon the days and times by the said acts in that case made, provided, and appointed for the same.

Upon the first of these issues, the jury found that Bigg Finding of the had paid over to the receiver-general all the sums received jury.

by him for assessments for the year 1828-9; but that he did not pay in all those sums to the service of that year, the sum of 23407. only having been paid by Bigg to the service of that year, and 6937., the residue of the sums so

1835.

GWYNNE

V.

BURNELL.

lands of the value of 121.,

received, having been expressly paid by him to the service of former years during which he had also been collector; but the defendant below had not been his surety during those years. It appeared in evidence that this sum had accordingly been passed to the credit of Bigg's account of those former years, and a receipt given for the amount of those years his account for which was completely paid That Bigg had up. Upon the second and third of these issues, the jury found that Bigg had lands or houses, after his alleged default in paying the last-mentioned sum, of the value of 1217., which could have been seized and sold by the commissioners under the 43 Geo. 3, c. 99, s. 52; and that he had goods, after such default, of the value of 2007., which could have been seized and sold by the commissioners; and that the commissioners had not notice that Bigg was no notice of the possessed of any houses, lands, or goods, at the time of his default: the jury however found that the commissioners had reasonable grounds for believing that he possessed household goods at that time of the value of 200%., which might have been seized and sold.

and goods of the value of 2001.,

that the com

missioners had

fact, but had reasonable

grounds for be lieving that he had the goods.

The third and fourth of the above issues were found for the defendant; and the question on that part of the case was whether the defendant's eighth and eleventh pleas were good or bad in point of law, after verdict.

The question for the opinion of the court below was, whether a verdict should be finally entered for the plaintiffs for the penalty of the bond and nominal damages, and also for the said sum of 6931., or any and what part of that sum, as damages for the third breach assigned in the replication to the second plea; or whether the defendant was entitled to have a verdict entered for him on the issue taken on the third breach, or to judgment on his fifth, sixth, seventh, eighth, or eleventh pleas, or a nonsuit.

Upon this special case, the court of Common Pleas decided, amongst other things not now in question, that the eighth and eleventh pleas were bad in law, inasmuch as

the allegations in those pleas respectively did not amount to a discharge of the defendant from the performance of the condition of the bond, but merely shewed a neglect on the part of the commissioners and the receiver-general in the performance of their duties; that the payment by Bigg to the receiver-general of all the sums received by him for assessments for the year 1828-9, but the not paying in all these sums to the service of that year, but, on the contrary, the paying in of 6931. part thereof expressly to the service of former years during which he had been collector, was not a "duly paying over to the receivergeneral," within the meaning of the condition of the bond; that the sale of the collector's lands and goods could only form a condition precedent to the right to put the bond in suit against the surety, where the existence of such property of the collector was known to the commissioners at the time of commencing the action; and that the subsequent finding of the jury, that the commissioners had reasonable grounds for believing that the collector had household goods, did not supply the want of actual notice or knowledge. Judgment was accordingly entered for the plaintiffs, with an assessment of damages to the amount of 6937. upon the breach of the condition thirdly assigned in the replication to the second plea. The special case was afterwards, by consent, turned into a special verdict, and now came on writ of error into this court.

Sir W. Follett, for the plaintiff in error, contended-First, that the bond should have been taken in the name of his majesty, his heirs and successors, and proceeded upon accordingly. Secondly, that the condition of the bond was not to the effect required by the statutes 43 Geo. 3, c. 99, and 3 Geo. 4, c. 88.-Thirdly, that the bond and condition were void for uncertainty, Bigg the collector in one part of the condition being required to pay over the monies coming to his hands to the receiver-general, and by

1835.

GWYNNE

V.

BURNELL.

1835.

GWYNNE

v.

BURNELL.

another part of the condition being bound when required to account for and pay over the monies collected on account of the assessments to the commissioners, or any two of them, or such person as they should appoint; that the latter part of the condition was illegal, the collectors being required by the said statutes of 43 Geo. 3, c. 99, and 3 Geo. 4, c. 88, to pay over the monies collected to the receiver-general, under a penalty.-Fourthly, that the third breach of the condition assigned in the replication to the second plea did not state, nor did it appear on any part of the record, that any days or times were appointed for the payment of the monies collected; and that, as the collectors were by the said acts required to pay the monies collected to the receiver-general at such times as should be appointed, the appointment of such times was a condition precedent to such payment by the collector: that it did not appear that the receiver-general attended at any place (whereof Bigg had notice) to receive the monies collected -see the 3 Geo. 4, c. 88, s. 2, rule 1-or that Bigg had notice of any time or place appointed for payment over of the same, or that any of the monies received by Bigg, as alleged in the third breach, were received prior to the days appointed for paying over the same; and that the appointment of an office by the receiver-general, or his attendance within ten miles of the collector's place of habitation, and notice to the collector of the time and place appointed, for payment of the monies collected, constituted a condition precedent to his liability to be charged with any defaultsee the 3 Geo. 4, c. 88, rule 1, art. 4, and the 43 Geo. 3, c. 99, s. 50, by which it is provided that the collector shall not be compellable to travel beyond ten miles from his habitation.-Fifthly, that the payment by Bigg in the manner found in the special was a sufficient payment according to the condition of the bond, to discharge the plaintiff in error as his surety.-Sixthly, that the seizure of the lands and goods of the collector, or at any rate an endeavour by

the commissioners to ascertain whether or not he had any, was a condition precedent to the commencement of an action by them against the surety on the bond; and that it was not shewn on the pleadings, and did not appear from the finding of the jury, that the commissioners, previously to commencing the action, had used any endeavour to seize the lands and goods of Bigg, or to ascertain whether or not he had any-see the 43 Geo. 3, c. 99, s. 13-whereas it was expressly found that Bigg had some lands and goods that were not seized.—Seventhly, that the plaintiff in error ought to have had judgment by reason of the finding on the sixth, fourteenth, and fifteenth issues.

Mr. Serjeant Taddy, for the defendants below, relied upon the arguments urged in the court below.

Cur. adv. vult.

There being a difference of opinion amongst the learned judges who were present at the argument, their several judgments were delivered seriatim, as follow:

1835.

GWYNNE

V.

BURNELL.

Mr. Justice WILLIAMS.-This case comes before us upon a special verdict. The question arises upon a bond given by the plaintiff in error for the due performance by a person of the name of Bigg of the duties of collector of taxes, to the defendants in error, commissioners of taxes, under the statute 43 Geo. 3, c. 99. To the declaration on this bond the defendant below pleaded, amongst other things not material to be noticed, (fifthly), "that Bigg did Fifth plea. demand and collect all the assessments; and that from that time to the time of exhibiting the present 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." To which the plaintiffs below replied in the fol- Replication.