to great expense, and great delay by suits at law and in equity. If the commissioners, however, chose to sell the collector's property, then indeed they were bound under the former section to give the surety the benefit of that sale; but it would be a strange thing to say that every portion of the collector's land, in every part of the kingdom, must be sold before the commissioners could be entitled to call on the surety. (a)

Lord DENMAN C.J. The proviso in 43 G. 3. c. 99. s. 13. admits of two constructions;-either that in an action against a surety, the Plaintiff shall not recover more than the amount of deficiency left after sale of the principal's property, if sold; or, that no action shall be maintained against the surety till such sale has been actually made. If the former construction prevail, I can discover no privilege that the surety obtains from the proviso, since the Plaintiff never could have recovered more than was due at the time of bringing the action, in whatever manner the debt may have been reduced. It has not been contended that the meaning was to give the surety the benefit of any sale made pending the action, and indeed the language is wholly inappropriate to such a case; and if sale were made pending the action, and provided a sum equal to the debt, all the costs would be incurred without necessity.

The commissioners have been supposed to owe some duty to the surety which should lead them to sell for his benefit the collector's property: it has even been contended that a mandamus would lie to compel them to take that step for the purpose of reimbursing him. But I confess myself wholly unable to find any thing in the

(a) I was undesignedly absent when judgment was delivered in this case, and am only enabled by the kindness of a

friend, to furnish the above
short note of what fell from
Lord Abinger.

1835.

GWYNNE

บ.

BURNELL.

1835.

GWYNNE

V.

BURNELL.

statute to warrant such an opinion. The commissioners
have no power to seize or sell, except for payment of
the debt due to themselves: when that is paid, their
power is at end. The act expressly requires them to
pay the overplus, if any, not to the surety, but to the
collector. It has been also supposed that equity would
compel the commissioners to act in some way for the
benefit of the surety. On this point I will not venture
to give an opinion; but I should think the same answer
must apply.
But it is much more natural to my mind
to believe that the legislature would afford a direct re-
medy by some clear enactment (though it may be sus-
ceptible of consequences not accurately foreseen) than that
they should have intended to make him resort for the same
purpose to a mandamus or a suit in chancery. Either of
these remedies would be probably more expensive and
not more effectual than the common action for money
paid, which the surety may certainly maintain. But the
proviso, if construed in the other sense, affords him a
substantial and a more reasonable benefit: and this
appears to me to be the proper meaning of the words,
which, though clumsily arranged, hold out to the surety
a distinct promise to that effect. Suppose such words as
these to have formed a part of the condition under which
the bond was given: " provided that this bond shall not
be put in suit for any deficiency other than that which
may remain after sale of the collector's property." I
cannot conceive any reasonable man to doubt that in
becoming a surety under such a restriction he should
not be sued till after such sale. Yet these words do not
strike me as stronger than those employed in the proviso.
If no bond can be put in suit against him, but for an
amount to be ascertained by another proceeding, surely
an ordinary man would expect that proceeding to be
taken before he was sued on his bond: especially, as it
might make an end of all claim upon him, by clearing

off the whole debt, and leaving no deficiency. I cannot feel, therefore, the force of the argument drawn from the direction that the bond shall be prosecuted on any failure or default of the collector. This would have been the obligee's duty without such direction, and even this must leave a certain discretion, otherwise the expense of a lawsuit might often be incurred when there was an absolute certainty of speedy payment. But this direction to prosecute, though absolute in its terms, is immediately incumbered with the clause now under consideration, which is, not that the suit commenced shall go forward only to a certain result, but that no bond shall be put in suit for any deficiency other than that remaining after sale, that is, as I conceive, till such sale has been held, and the deficiency ascertained.

The words of the proviso give rise to another argument, which to me appears more plausible. The sale is to be made in pursuance and by virtue of the directions and powers given to the commissioners by this act.

We are thus driven to the fifty-second section, by which the extraordinary power of summary seizure and sale is vested in the commissioners. They are authorised and empowered to seize; and though at a later stage they are required to sell under the circumstances there described, they have a discretion in the first instance to seize or not. It is then argued that, as no sale may ever take place in pursuance of the act, the surety cannot be entitled as of right to any advantages contingent upon a sale. But, upon reflection, this argument has led me to the more confident opinion of the correctness of the view I have taken. For if, in the exercise of that discretion, the commissioners should decline to sell at all, then, though they should have notice of lands belonging to the collector far surpassing in value the debt due from him, the principal might be left in possession of them all, while the surety was

1835.

GWYNNE

ย.

BURNELL.

1835.

GWYNNE

v.

BURNELL.

compelled to pay his debt. I cannot consider this as by any means improbable, but quite the contrary. The commissioners are trustees, and bound to do their best for the interests confided to them, and I do not find that they are bound to any other duty. They might therefore, and as prudent men probably would, in many instances, proceed against a solvent surety, preferring so simple and complete a remedy to the difficult and hazardous course of seizing property, subject to every variety of question as to value, title, and trusts that may affect it. The proviso would therefore be merely illusory as a protection to the surety.

On the other hand, these qualifying words, "by virtue and in pursuance of the directions and powers contained in this act," would be a very vague and imperfect equivalent for "if in their discretion they should think proper to sell;" and they are not without an appropriate meaning, the sale contemplated being that which the fifty-second section authorises. And the meaning of both sections together may I think be taken as thus addressed to the commissioners: "You are not compellable to sell; you may do so, or abstain from it, as you think proper: but if the collector possess any property, you must seize and sell it before you put in suit the surety's bond."

The judgment delivered in the Court of Common Pleas assumes that the sale of the collector's goods and lands may "form a condition precedent to the right to put the bond in suit against the surety:" and in the case of Peppin v. Cooper, a plea similar to the present, except that it omitted the averment of notice, was pleaded in bar to an action brought against a collector's surety on his bond. The plea was held bad, because it referred to the property of another collector, for whom the Defendant was not surety. But the learned counsel for the Plaintiff (the present Attorney General) did not

1835.

GWYNNE

V.

bring forward the objection now raised, which would have gone to the root of the defence, nor does it appear to have occurred to the Court of King's Bench. "He is not the collector (says Lord Tenterden) contemplated BURNELL. by the act of parliament, whose lands and goods must be sold before proceedings are had upon the bond against the surety." Holroyd J. uses nearly the same words: "The collector contemplated by the act, whose goods are to be sold previously to the bond being put in suit, is the collector who has made default." As far as these learned Judges had considered this point, their impression clearly was that the surety was protected from suit on his bond till the collector's goods had been sold.

Here, then, the second question arises: Whether the suit against the surety is postponed to sale of the collector's property, or of such property only as the commissioners have notice of. One of the pleas alleges the collector to have had lands and goods within the jurisdiction, which might have been seized and sold, and of which the commissioners had notice. The replication denies this, involving notice as parcel of the issue tendered; and the rejoinder states, that the collector had divers lands which the commissioners ought to have seized and sold; and all the goods and chattels which could and ought to have been discovered and found were not seized and sold in manner and form, &c.; concluding to the country. And this was one of the issues tried by the jury, who found that the collector had lands and goods within the jurisdiction; that the commissioners had no notice of them; that they had reasonable grounds for believing that he had them; and that they might have been seized and sold under the provisions of the act.

In this state of the record I am of opinion that the Defendant is entitled to our judgment, on the broad