that such provision is not illegal:- for if there is a case in which the commissioners may lawfully require the payment to be made to themselves, or two of them, or to such person as they shall appoint, the condition must be construed to have reference to such a requisition; and that they have such a power appears by 43 G. 3. c. 99. s. 39.; for they may call the collector before them after his year has expired, if the arrears are unpaid, and make such order therein as they shall judge necessary, to prevent any failure in the payment of the assessment. A request to pay to themselves, or to pay to two of themselves, or to pay to an appointee, might lawfully be made for the purpose of preventing such failure. And, besides, if no such request be made, that part of the condition is inoperative. It is at the most, therefore, a contingent illegality, and in the mean time the rest of the condition is legal; and the Defendant below has not pleaded that such a request has been made. This first objection, therefore, cannot prevail. The second was, that there was no statutory time fixed for the payment of the sums collected to the receiver general, but that the receiver general himself is to appoint the days, and that there is no averment in the assignment of the third breach, (on which alone the Plaintiffs below are entitled to recover, if they are entitled at all,) that such days were appointed. But it is clear that after verdict the breach is well assigned; and it must be taken that days were fixed by the receiver general, which days, when so fixed, would be days appointed by the acts of parliament. On those days the jury find that the collector did pay all the sums collected by him: he made the payments precisely at the times required by the condition of the bond; but he did not pay all those sums to the service- it would be more correct to say -to "the account" of the year for which he had been appointed collector. 1835. GWYNNE V. BURNELL. 1835. GWYNNE V. BURNELL. A third objection is then made, that such a payment is, nevertheless, a good compliance with the terms of the condition by which the collector is "well and truly" to pay to the receiver general all the sums of money collected by him. And this objection is one of those which the special verdict was intended to raise. I am clearly of opinion that such a payment does not satisfy the terms of the condition. The special verdict finds that Bigg paid 6931., part of what he received of the taxes as collector for 1828, 1829, to the service, that is, on account of former years, during which he had been collector. The condition of this bond is to be construed precisely in the same way as if another person had been collector for a former year; and could it then admit of any doubt but that it would be a breach of a condition to pay "well and truly" to the receiver general, if the money had been lent to such former collector, to enable him to pay his arrears, although the money had been so applied? This case is precisely the same, so far as relates to the question whether there had been a breach of the condition. It is, in effect, for this purpose, an appropriation by Bigg to the payment of his own debt: though doubtless the damage to the parish is not necessarily the same as if Bigg had applied the amount to pay off a private debt of his own; and in that respect there is some inaccuracy in the report or judgment in the Common Pleas. (a) But on this writ of error we cannot inquire into the amount of damages which the jury have assessed. I would by no means, however, intimate an opinion that they have assessed them improperly; and I would observe that it makes a material difference to the parishioners, as a fluctuating body, whether the collections of one year are paid to the amount of that year, or to wipe off the arrears of a (a) 9 Bingh. 563. former for which also the same person has been The last, and the most serious objection, is, that, under the circumstances found by the special verdict, the action will not lie against the Defendant, the surety. The facts found are, that Bigg, after his alleged default, had lands or houses belonging to him of the value of 1217., and goods to the value of 2007., which could and might have been seized and sold before the commencement of the suit by the commissioners; that the commissioners had not notice of Bigg's being possessed of the houses or lands, but, before the commencement of the suit, they had reasonable grounds for believing that he possessed the goods, at the time of the default, which might have been seized and sold by them. The Court of Common Pleas, without deciding whether the seizure and sale of the lands and goods was a condition precedent 1835. GWYNNE V. BURNELL. 1835. GWYNNE บ. BURNELL. to the Plaintiffs' right to recover, according to the true construction of the 48 G. 3. c. 99. s. 13., were of opinion, that such sale could only form a condition precedent when the existence of such property was known to the commissioners at the time of the commencement of the action; that such qualification is necessarily implied in the clause in question; and that on this ground they gave judgment for the Plaintiffs below, on the issues raised on the fifth, sixth, and twelfth pleas, being the twelfth, thirteenth, and last issues. In turning the special case on which that Court gave its opinion, into a special verdict, the judgment of the Court is entered on the record as a judgment that the twelfth, thirteenth, and last issues ought to have been found for the Plaintiffs below. I have a difficulty in saying that the judgment in this form can be supported, because the facts found do not negative the affirmation in those issues. The rejoinder to the replication to the fifth plea, which raises the twelfth issue, is, that Bigg had divers lands within the jurisdiction of the commissioners, which they might have seized and sold, and that all goods of Bigg that might have been found were not seized and sold. The special verdict finds these facts for the Defendant below; and I think the knowledge of, or notice to, the commissioners of these facts is not in issue at all upon this rejoinder: if so, the twelfth issue should have been found for the Defendant below; and then there is a difficulty in giving judgment non obstante veredicto on this issue for the Plaintiffs below, on the principle upon which the Court of Common Pleas proceeds; viz., that it was not a condition precedent that the commissioners should sell either land or goods unless they had notice thereof: for the plea contains an averment of notice; and I doubt if the rejoinder can properly be said to contain a confession that they had no such notice that there were lands and goods: and a judgment non obstante veredicto always proceeds upon the implied confession contained in the pleadings and its insufficient avoidance. In truth, there is no affirmative and negative of one distinct proposition involved in the issue: the replication does not aver, simply, that there were no lands and goods, but that there were none known to the Plaintiffs below; whereas the rejoinder puts in issue the simple fact that there were lands and goods. I am, therefore, disposed to think that the Court ought, upon the principle upon which their judgment proceeded, to have adjudged the issue immaterial, and awarded a repleader; which course a court of error cannot pursue. If, however, I am wrong in this respect, and there is such a confession of want of notice, I can have no difficulty in agreeing with the Court of Common Pleas, that the existence of such property, without notice, is certainly not a bar to the action. But I go further, and think it is not so even with notice. If the fifth plea be bad in substance, that is, if it be not a condition precedent to the Plaintiffs' right to recover, that they should seize and sell all the lands, tenements, and goods of the collector, although they had notice that there were such, then this Court is bound to give judgment non obstante veredicto on the confession in that plea and its insufficient avoidance; and the principal question in the cause is, as it, seems to me, whether the provision in the thirteenth section of the 48 G. 3. c. 99. does, when there is notice to the commissioners, constitute a condition precedent; and I am of opinion that it does not. In the first place, I think it is discretionary in the commissioners whether they will seize or not; and this proviso is contingent on the actual exercise of that discretion, and has no effect at all unless they do. In this case they have not so done; and if this is not so, but the clause is 1835. GWYNNE V. BURNELL. |