1835. GWYNNE v. BURNELL. which had been uncollected in them; and though it was argued that he had no power to do so by any clause of the act, yet it is obvious that the practice must be so to receive the arrears. Whether that practice be legal or not, or whether the receiver-general was negligent or not, seems to me to be quite immaterial; for his overlooking or joining in the misappropriation of money by the collector cannot make the collector's acts less illegal; and it is for the collector's act that the present Defendant is answerable. I have not referred to any authorities on these questions, for I do not find any directly in point. Peppin v. Cooper (a) was relied on, but the facts make it very distinguishable. For these reasons I entirely concur in the judgment of the Court of Common Pleas, and am of opinion that it ought to be affirmed. BOLLAND B. The only difficulties that present themselves to me in this case arise upon the issues to the fifth and sixth pleas. The fifth plea in substance is, That Bigg, the collector, had lands and goods of which the commissioners had notice, and which were subject and liable to be seized, and could and might have been seized and sold, but which were not sold by the commissioners. The sixth plea differs from the fifth in no other particular than in stating, that Bigg was possessed of and entitled to goods and chattels; and the question is, whether any of the words in the act of the 43 G. 3. c. 99. make the sale of the lands and goods of the collector and principal in the bond a condition precedent to the putting the bond in suit against the Plaintiff in error, one of the sureties for the collector. This question depends on the thirteenth section of the statute, which, after enacting that every bond given to (a) 2 B. & Ald. 431. the commissioners by way of security shall be prosecuted by such commissioners on any failure or default of the collector, contains the following words: "Provided always, 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 of and by virtue of the directions and powers given to the respective commissioners by this act." In order to determine the true construction intended by the legislature to be put upon this proviso, it may be useful to look at the advantages obtained by persons becoming sureties in these bonds, and to consider whether, to prevail upon them to do so, it was not intended to throw around them all the protection that the nature of the transaction admits of, from the consequences of the failure or default of their principals, and not to render them liable for any deficiency till the property of the collector, as far as it can be ascertained, shall have been made available by the commissioners, and applied as far as it will go in satisfaction of such deficiency. By the ninth section the assessors are to return the names of two or more able and sufficient persons, within the bounds and limits of those parishes or places for which they shall be assessors respectively, to the commissioners, to be by them appointed collectors of the several duties to be raised and assessed by them as such commissioners. By the thirteenth section it is enacted, that such persons as shall be presented to the commissioners to be collectors shall, if required, give good and sufficient security equal to the whole duty and sums of money assessed in and to be collected in each district: the commissioners are to take a joint and several bond, with two sureties, at the least, and on failure of the persons so named giving such security, the commissioners shall be at liberty to appoint any other persons 1835. GWYNNE ย. BURNELL. 1835. GWYNNE V. BURNELL. who can give such security. The amount for which the bonds are directed to be taken are very considerable, (in the case before us the sum is no less than 4048%.); the inhabitants of the parishes and places in and for which the assessments are to be made and collected are deeply interested in the fidelity and solvency of those by whom the collections are to be made; and it is obvious that it is greatly advantageous to the public to hold out every inducement to persons to come forward as sureties, who may be inclined to forward the welfare of those who are desirous to become collectors. It was with this view, as it appears to me, that the proviso was introduced. If the words be taken in their plain and obvious sense, the commissioners are called upon to look to the interests of the surety before they put the bond in suit against him; and the surety finds his responsibility and risk diminished by the proviso. But to say that it is merely directory would be to deprive him of the greater part of the protection that, it is manifest to me, the legislature intended to give him. The proviso, in my opinion, creates a condition precedent in favour of sureties in bonds taken under the authority given to the commissioners by the thirteenth section of the act; and such bonds are not to be put in suit (which I consider to mean no proceedings shall be had) against any surety for any deficiency, other than what shall remain unsatisfied after the sale of the lands, tenements, goods, and chattels of the collector, by virtue of the directions and powers given to the commissioners by the fifty-second section of the statute. The second question that presents itself is, whether, although the proviso may create a condition precedent, the commissioners are chargeable with any default in not seizing and selling the lands, tenements, goods, and chattels of the collector, before putting the bond in suit against the sureties, until they have had notice that the collector was possessed of lands, tenements, goods, and chattels; or whether it is sufficient for a surety to say that his principal, the collector, was possessed of and entitled to divers lands, goods, and chattels, as of his own property and within the jurisdiction of the commissioners, and which lands, goods, and chattels were subject and liable to be seized and sold, without stating that the commissioners had notice of them. I am of opinion it is not. I think it is essential to the validity of the plea, that the surety should aver that the commissioners had such notice. Although the commissioners are by the fifty-second section of the statute, for the benefit of the public, and for the protection of the surety, invested with very large powers, viz. of seizing and selling the lands and goods of the collector, it cannot be taken that they are to be considered to have knowledge of the lands, tenements, goods, or chattels of the collector, and to be held answerable for not seizing and selling them, unless notice be brought home to them of the possession of such property by the collector. The commissioners are mere official agents in the matter; the parties really interested are the inhabitants of the district, who, in case the bond cannot be made available against the collector or his sureties, are liable to repay to the crown the amount of the deficiency occasioned by the default or insolvency of the collector and the sureties; the extent of whose liabilities on the bond depends upon the amount to which the property of their principal may be made available. That such notice was thought necessary by the Defendant below appears by his having averred in the fifth and sixth pleas that the Plaintiffs below had such notice. The Plaintiffs below, by their replications to these pleas, say, that Bigg had no lands or goods and chattels within their jurisdiction which they could seize and sell, of which they had notice; and that all the goods and 1835. GWYNNE บ. BURNELL. 1835. GWYNNE V. BURNELL. chattels of the collector of which the Plaintiffs below had notice were seized and sold. The Defendant below, by his rejoinders, does not assert notice, but tenders immaterial issues. And as it is distinctly laid down by Hale C. J. in the case of Bennett v. Holbeck, reported in 2 Saunders, 319., that a repleader cannot be awarded in a writ of error, and such has, as far as I can find, been the rule ever since; and if it were otherwise, as a repleader is not grantable in favour of the person who has made the first default in pleading, and as such person is in this case the Defendant below, I am of opinion that no repleader could be awarded. It appears to me that the rejoinder admits that if there were lands and goods there was no notice thereof to the Plaintiffs below, and therefore they are entitled upon that confession to judgment on the issues to the fifth and sixth pleas, non obstante veredicto, as those pleas are substantially bad in law. Authorities for the opinion I have formed are to be found in Cro. Eliz. 214., 6 Mod. 10., Str. 394., 1 Lord Raym. 641., 8 Taunt. 413. For the above reasons I think the judgment of the Court of Common Pleas is right in substance, though wrong in form, and that it ought to be affirmed. PARKE B. In this case, I am of opinion that the judgment of the Court of Common Pleas ought to be in substance affirmed. Several objections were taken on the argument, upon most of which the Court intimated a clear opinion in the course of it; and it is not now necessary for me to notice more than four. First, it was contended that the bond was illegal, and void, because the condition was to pay the amount received to the receiver general, and the commissioners, if required, and the latter provision was against the statute. The answer to this objection is, |