to aver in the pleadings that there are lands and goods of the collector unsold, or whether it is necessary to add that the commissioners had notice of such lands or goods? On this question I have entertained great doubt, for I find no clause in the act in terms requiring such notice; and the phrase which approaches nearest to it, "wheresoever the same can be discovered and found," seems intended to apply only to the place at which they may be found, and to give a larger power of seizure than the commissioners might otherwise have: but on the whole it appears to me, that lands or goods of the collector of which the commissioners have no notice, (and by notice I understand knowledge by whomsoever communicated, or howsoever acquired,) must be considered as lands or goods not in existence. The inconvenience which would arise from a contrary decision 1s manifest; the commissioners have no means of finding out concealed property. Yet on any action being brought against a surety, it would be easy to bring forward some article unsold and defeat the action, and so toties quoties, till the surety also had removed all his effects. On the other hand, there is no hardship in calling upon the surety to give the commissioners information of any property that he desires to have sold for his benefit, which information it would not be difficult for him to give if he had used ordinary prudence in ascertaining the property of the collector before he became surety for him; or if actual notice by the surety be not required, and the commissioners could be shewn to be wilfully ignorant of the collector's property by reason of their omitting to make inquiry, the surety, if injured, might have his remedy against the commismissioners for such omission. It is true that the act requires the commissioners to select a collector from the persons presented to them, and therefore at the time of his appointment they have their attention called to his Hark & Fin 634 C 3 1835. GWYNNE v. BURNELL. 1835. GWYNNE V. BURNELL. sufficiency in respect of property; but still I do not think that this circumstance makes it incumbent on them to inform themselves of every article he may possess within their jurisdiction; and unless it be carried to that extent, I think it must be necessary for the surety to shew that they had knowledge of the existence of the property, the want of sale of which is set up as a defence. As I am of opinion that the sale is a condition precedent, but the sale only of those lands and goods of which the commissioners have notice or knowledge, the third question arises as to the effect of the pleadings and the special verdict in this particular. Now the pleas in substance allege the existence of saleable lands and goods, of which the commissioners had notice. The replications assert that there were no saleable lands of which the commissioners had notice; and that all the saleable goods of which they had notice were sold. The rejoinders assert that there were saleable lands and goods not sold, omitting all mention of notice. The special verdict finds the existence of saleable lands and goods which have not been sold; but also finds the want of notice as to the lands, and that the Plaintiffs below had reasonable grounds to believe that the collector had goods. I consider this latter finding as equivalent to finding want of notice as to the goods also. It certainly is not a finding distinctly that they had not notice; but in the words of my Lord Chief Justice in giving the judgment of the Court of Common Pleas, "such finding, neither by the rules of pleading, nor in the natural meaning of the words themselves, can supply the want of actual notice or knowledge; it does not even amount to an assertion of actual belief in the commissioners." (a) Now if the point of notice be involved, though informally in the (a) 9 Bingh. 565. 1835. GWYNNE V. issues, thinking as I do that the point of notice is material, I hold that the verdict is conclusive, and the judgment must be for the Plaintiffs below. And this, as it appears to me, is in truth the real state of the pleadings, BURNELL. and that the notice is informally part of the issues, but I have considerable hesitation in coming to that conclusion. However, if the point of notice be excluded from the issues, then as the immediately preceding pleading, viz. the replications, denied the notice, and the rejoinders which take issue on the existence of the lands and goods do not assert the notice, they admit the want of notice, and so render the issues immaterial, and leave the Plaintiffs below wholly unanswered on this part of the record. But it is denied that there is any such admission; and then it is said that the jury were not at liberty to find a fact not involved in the issues; therefore that their finding must be taken as a finding only of the existence of the lands and goods, and so must be treated as a verdict for the Defendant below. Now whether the issues be material or not, I apprehend that the jury are at liberty to find any facts not inconsistent with the pleadings; and here the want of notice, so far from being inconsistent with the pleadings, is either admitted by them, or at all events not denied, upon the supposition that notice is not involved in the issues; and though it be true that if the issues do not involve the point of notice they must be treated as found for the Defendant below, yet the special finding of the jury may be used to shew that if the issues had been properly taken the verdict would have been for the Plaintiffs below. Either, then, on the ground of want of notice being admitted by the pleadings, or on the ground of the special finding, it appears that by no form of pleading could the Defendant below entitle himself to a verdict on the merits, which is exactly the case in which all the authorities shew that judgment non obstante veredicto ought to be given. Had this been 1835. GWYNNE V. BURNELL. doubtful, and the issues been simply immaterial, the course for the court below would have been to award a repleader; but it seems that a Court of Error cannot so award. Upon the whole, and for the reasons I have stated, I am of opinion that, as regards these issues on the fifth and sixth pleas, the Plaintiffs below are entitled to judgment. The inclination of my opinion is that they are entitled to that judgment simpliciter, as given by the Court below; but if I am wrong in this, I still should think them entitled to judgment non obstante veredicto. The other points in this case were disposed of, as I understood, upon the argument. However, I have reconsidered them, and will state shortly the conclusion to which I have come. The first objection was, that the bond was not taken conformably to 43 G. 3. c. 99. s. 13., because it is conditioned to pay the receiver-general, and also the commissioners. The answer is, that even if the latter part of the condition be void, it will not vitiate the former part, which pursues the language of the forty-eighth section. Besides which it should seem, that a case may arise under the thirty-ninth section, in which it might be the duty of the collector to pay arrears remaining in his hands to the commissioners themselves. Some observations were made on this part of the case, as to the subsequent statute, 3 G. 4. c. 88., but on examining that statute, it appears to me to have nothing to do with the present question. Another objection was, that the bond is conditioned for payment to the receiver-general at the times by the said acts appointed. Now no times are appointed by the acts. The answer is, that the receiver-general is empowered, by the forty-eighth section to appoint the times; and those times, when appointed by him, are the times appointed by the acts. It is said that no averment of such ap pointment is made in the pleadings: but general performance is pleaded; and the third breach alleged in the replication to that plea is, that the collector did not pay to the receiver-general the monies collected at the times by the said acts appointed; on which there is a special verdict, finding that he did. It must, therefore, be presumed, that the receiver-general had appointed some times of payment, otherwise such verdict could not have been found. Another objection, and that a very important one, and which was intended to be raised by the special verdict, was, that the collector had performed the condition, inasmuch as it is found by the special verdict, that he did well and truly pay to the receivergeneral all monies collected by him, upon the days and at the times by the acts appointed; although it adds, that he did not pay the whole to the service of the year for which he was collector, as stated in the condition, but to the account of previous years. Now without entering minutely into an investigation how far the parish may be affected by holding such payment to be a performance of the condition, and by compelling them to have recourse to the sureties of former years, in which the deficiencies first arose; or how such a fluctuating body as the inhabitants of a parish are or ought to be made liable for the defaults of former years; I must say, that the payment in this case appears to me to be no more within the true meaning of the condition of the bond than it would have been if the collector had applied the money towards the discharge of any other debt which he owed. Nor do I think that it would make any difference if it had been shewn that the receiver-general was a party to the improper appropriation, though I am far from supposing that he was. facts, indeed, seem to indicate that he took the money from the collector as the arrears of former years The 1835. GWYNNE V. BURNELL. |