1835. GWYNNE V. surety, because, if he looked after his own interest, a very little exertion would enable him to make himself at least acquainted with the material parts of the property of the BURNELL. collector; and if he is afraid that the commissioners may not be very anxious to get the information themselves, it would be very easy for the surety to give distinct notice of the property to the commissioners: not that I mean, as I have before stated, that express notice need be given; for if they have knowledge, by any means whatever, that constitutes notice within the meaning of the word notice as used in these proceedings. Having come to this conclusion on those points in which the Judges differ, it is now to be considered how the finding of the jury affects the question, whether the Plaintiffs below or the Defendant below is entitled to judgment. They have found that Bigg had lands to the value of 1207., which could and might have been seized and sold, in pursuance and by virtue of the directions. and powers given by the act: they also found that he had goods similarly circumstanced; but they further found that the commissioners had no notice of Bigg having the lands, but that they had reasonable ground for believing that he had the goods. This finding shews, that the Defendant below, according to my opinion, cannot avail himself of a defence as far as relates to the nonseizure and sale of the lands. But as to the goods, the finding amounts to nothing: they should have found, either that they had or had not notice, or knowledge; and, as it is a material fact whether they had notice or not, the finding is imperfect on that point: if the meaning be, that they had not notice, then this ground of nonseizure and non-sale would not avail the Defendant below; but if it be taken to mean that they had notice or knowledge, then, in my view, it would constitute a defence. If the special verdict be imperfect in a point material for the judgment, there must be a venire de novo awarded. 1835. GWYNNE v. But supposing the verdict should be taken to negative notice; then, as the nonseizure and nonsale of the goods would furnish no defence, it must be enquired what is the effect of the issues being joined as they are, and the BURNELL. finding in the special verdict upon these issues? The fifth plea states, that Bigg 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 remained unsold by the commissioners. The sixth plea states, that Bigg had goods of which the commissioners had notice, which were subject and liable to be seized and sold, and might have been seized and sold, but which goods had not been sold by the commissioners. The replication to the fifth plea says, that Bigg had no lands which the commissioners could seize and sell of which they had notice; and that all the goods of Bigg of which the commissioners had notice were seized and sold. The replication to the sixth plea says, the commissioners did seize and sell all the goods of Bigg of which they had notice. The rejoinder to the replication to the fifth plea alledges, that Bigg had lands which the commissioners could and might have seized and sold, and that all the goods of Bigg which could, and might, and ought to have been discovered and found by the commissioners, were not seized and sold, in pursuance of the directions and powers given by the act, in manner and form as the Plaintiffs below have alleged. The rejoinder to the replication to the sixth plea says, that the commissioners did not sell all the goods of Bigg in manner and form as the Plaintiffs below have alleged. Both parties proceed regularly as far as the fifth and sixth pleas, and the replications upon them go towards bringing to an issue the real point in dispute. But when the Defendant below comes to both the rejoinders, he drops all about the notice. Now, as notice is material, the rejoinders are 1835. GWYNNE v. BURNELL. bad, because they omit to put in issue a material alle- Then how is the matter to be treated? It may be said of Bigg in the parish of A., which lands were the groundwork of the defence: and so here it may be said that it must be intended the inquiry is to be about lands of which the commissioners had notice, which is what the Defendant below puts his defence upon. But I doubt whether it can be so taken. Supposing it cannot, then as the issue of having lands, taken by itself, is an immaterial issue, it would not be cured by verdict; for though informal issues are cured by verdict, immaterial issues are not; and then here it is sought to turn a finding, which in words is for the Defendant below, into a finding which is to give a judgment for the Plaintiffs. The proper mode of proceeding, if the finding be an immaterial issue, is to award a repleader. But a court of error cannot do that. The Plaintiffs below may contend that they are entitled to judgment non obstante veredicto, but there seems a great difficulty in doing that; for the rejoinder is not one which shews the Defendant below has no defence on the whole case, which is the ground of entering a judgment for the Plaintiffs below in such a case; for the finding of the jury that Bigg had lands is not like an allegation which furnishes no defence; but it is part of an allegation which, coupled with something else, would constitute a defence; and that something else is imperfect, and does not form part of the issue which the jury ought to try, and if found one way would shew there was a defence, but in the other way not. If the rejoinder could be taken to be a confession of the want of notice, that would be another thing, and perhaps judgment might be entered for the Plaintiffs below, because, if the Defendant below has admitted want of notice, then the finding of the jury that Bigg had lands, when coupled with the confession of the Defendant below that there was no notice, would shew that he had no defence. But I don't think that the Defendant below can be taken to have confessed that the VOL. II. 7 Clark of the 6244 E 1835. GWYNNE v. BURNELL. 1835. GWYNNE v. BURNELL. commissioners had no notice, for the allegation of lands of which the commissioners had notice is one entire allegation: and the notice is not alleged as a substantive thing ; and I don't think the dropping part of an allegation, when the other part by that means becomes immaterial, is to be an admission of what is so dropped. But it may be said that the jury are at liberty to find facts which have been introduced into the pleadings, though they are not parcel of the issue. In many cases they may: but I doubt whether they can do so to cure an immaterial issue when both parties have concurred in going to trial upon such an issue. After all it is an immaterial issue, which I should be very glad if I could say that it could be helped; but I cannot. The issue in form is found for the Defendant below, and I see nothing to make the judgment vary from the verdict; and which, therefore, I think should be entered for the Defendant below; and, consequently, that the judgment of the Court of Common Pleas should be reversed. Lord ABINGER C. B. expressed his concurrence in the judgment of the Court of Common Pleas, on the broad ground that the commissioners were not bound to sell the collector's property previously to putting in suit the surety's bond, unless they received notice of the existence of such property. The fifty-second section gave them authority to sell, but did not require them to do so at all events. They had power to exercise a discretion for the security of the public revenue, and if they did not think it expedient to sell, they were not bound to do so. This appeared to be the intention of the legislature, not only from the words, but from the obvious policy of the act; for if the commissioners were compelled to sell the whole of the collector's property before they had recourse to the surety, the collection of the revenue might be exposed |