1835. ANDREWS v. DREVER. the land, either in family settlements or conveyances from one hand to another, or in leases from the owners of the tithes ; in all which cases there would have been a positive dealing with the tithes as a substantive property separate and distinct from the land, and in which the enjoyment of that property by the non-perception by the lay rector would have gone along and have been consistent with the documentary evidence. In these supposed cases nothing would have been wanting but the production of the original grant of the tithes from the lay rector to the terre-tenant; and the want of such original grant might well be supplied by the presumption that it once existed, and was lost, by time or accident, on the ordinary grounds on which such presumptions are made; but the presumption in this case, if made at all, must be grounded on the mere non-perception, and nothing else. We are unable, however, to see how far the presumption, resting on such negative grounds alone, can be distinguished either in principle or effect, from a prescription in non decimando. In both cases the evidence, and the only evidence, must be the right of the rector on the general law of the land, the occupation of titheable land by the terre-tenant, and the non-perception of tithes arising from the land in the earliest times to the rector: the claim on the part of the land owner is precisely the same whether set up as a prescription in non decimando, or the presumption of a grant; it is in both cases a claim that the land is to be held free from the payment of tithes. If, therefore, such a state of facts can be held to support the presumption contended for, it would necessarily follow that in every case the non-payment of tithe would have the full effect of a prescription in non decimando, though such a prescription is admitted not to be valid at law. Upon these short grounds we have come to the conclusion which I have already stated to your Lord- Lord Lyndhurst, and Lord Brougham, having expressed their concurrence, the judgment of the Court below was Affirmed. (IN THE EXCHEQUER CHAMBER.) GWYNNE v. BURNELL and Others. May 23. tor's lands not a condition precedent to THE Court of Common Pleas having decided in this 1. The sale of First, That the bond should have been taken in the Secondly, That the condition of the bond was not to the effect required by the statute 43 G. 3. c. 99. and putting in suit a bond given by a surety under 43 G. 3. c.99. for the due performance of the collec tor's duties. At all events, not unless the ob ligee have notice where to find the collector's property. 2. Payment to the account of a given year, of sums collected for a different year, is no discharge of the demand against the collector in respect of those sums. 3. It is no objection that the surety's bond is conditioned for payment by the collector to the receiver-general, and to the commissioners: or that it is con ditioned for payment at the times by the act appointed. 1835. GWYNNE v. BURNELL. Thirdly, That the bond and condition were void for uncertainty,-Bigg, the collector, in one part of the condition being required to pay over the monies to the receiver-general, and by another part of the condition being bound, when required, to account for and pay over the monies collected on account of the said assess-ments to the commissioners, or any two of them, or such person as they should appoint;-and that the latter part of the condition was illegal, the collectors being required by the said statutes of 43 G. 3. c. 99. and 3 G. 4. c. 88. to pay over the monies collected to the receivergeneral under a penalty. Fourthly, That the third breach of the condition assigned in the replication to the second plea did not state, nor did it appear, on any part of the record, that any days or times were appointed for the payment of the monies collected; and as the collectors are by the said acts required to pay the monies to the receiver-general at such times as shall be appointed, the appointment of such times was a condition precedent to payment by the collector Bigg. Further, that it did not appear that the receiver-general attended at any place whereof Bigg had notice, to receive the monies collected, (see rule 1. 3 G. 4. c. 88.) or that Bigg had notice of any time or place appointed for paying over the same, or that any of the monies received by Bigg, as alleged in the third breach, were received prior to the days appointed for paying over the same; and that it was a condition precedent for the receiver-general to have appointed an office, or to have attended within ten miles of the collector's place of habitation, and to have given him notice of the time and place appointed for payment. (See 3 G. 4. c. 88. Rules No. 1. 4th rule, and 43 G. 3. c. 99. s. 50., by which a collector is not bound to travel beyond ten miles from his habitation.) Fifthly, That the payment by Bigg in the manner found in the special case was a sufficient payment, 1835. GWYNNE ข. . Sixthly, That the seizure of the lands and goods of BURNELL. the collector, or at any rate an endeavour by the commissioners to ascertain whether he had any or not, was a condition precedent to their commencing an action on the bond; and it was not shewn on the pleadings, and did not appear from the finding of the jury, that the commissioners, previously to commencing this action, used any endeavour to seize the lands and goods, or to ascertain whether Bigg had any, (see 43 G. 3. c. 99. s. 13.), while it was expressly found that Bigg had some lands and goods that were not seized. Seventhly, That the Plaintiff in error ought to have had judgment on account of the finding on the 6th, 14th, and 15th issues. (a) Taddy Serjt. supported the judgment below. Cur, adv. vult. The judges, differing in opinion, now delivered their judgment seriatim. Williams J. This case comes before us upon a special verdict, and the question arises upon a bond given by the Plaintiff in error for the due performance, by a person of the name of Bigg, of the duty of collector of taxes, to the Defendants in error, commissioners of taxes, under the 43 G. 3. c. 99. To the declaration on this bond the Plaintiff in error pleaded, amongst other things not material to be noticed, fifthly, "that Bigg did demand and collect all the assessments; and that from (a) The judgment of the Court is so full, as to render it unnecessary to give here more · Park & Fin 615 than the heads of the argument 1835. GWYNNE V. that time, to the time of exhibiting the present bill, he had lands, goods, and chattels within the jurisdiction of the commissioners, of which they had notice, and which BURNELL. might have been seized and sold by them, but which they neglected to sell." To which the Defendants in error have replied in the following manner:-"That Bigg did not faithfully demand and collect all the assessments; that he had no lands within their jurisdiction which they could seize and sell of which they had notice; and that all the goods and chattels of the said Bigg within their jurisdiction, and of which they had notice, were seized and sold, and were inadequate to the satisfying the deficiencies of Bigg." And in my view of the case, it is not necessary to advert further to the pleadings. With respect to the special verdict, the material facts found are, "that the said Bigg had lands or houses after his alleged default, of the value of 1217., which could have been seized and sold by the commissioners, under the 43 G. 3. c. 99. s. 52.; and that he had goods after such default of the value of 2007., which could have been seized and sold by the commissioners;" and also, "that the said commissioners had not notice that Bigg was possessed of any houses, lands, or goods, at the time of his default." The jury then find, what, I admit, falls far short of notice, that the said Bigg was possessed of goods. Two questions arise, depending upon the construction of the above-mentioned statute;-first, Whether the sale of the lands and goods of Bigg be a condition precedent to the commencement of the action against the surety; and next, whether notice by the surety of the existence of such lands and goods to the commissioners be necessary. The first, and, as it seems to me, the principal question, arises upon the construction of the thirteenth section of 43 G. 3. c. 99., which, after providing that |