found for the Defendant below, and judgment given for the Plaintiffs below on the confession in the fifth, sixth, and twelfth pleas, non obstante veredicto. LITTLEDALE J. Many of the points raised in the argument have already received the opinion of some of my brothers, and upon these there is no difference of opinion; and I do not, therefore, go into a consideration of them. The points on which there is a difference of opinion on the construction of the statute of 43 G. 3. c. 99. are two; the first, whether the sale of the lands and goods of the collector be a condition precedent to putting the bond in suit against the surety. The second, whether, if it be a condition precedent, it applies to all the lands and goods of the collector, or only to those which were known to the commissioners; and I use the term known, because the word notice, which occurs in the pleadings, sometimes means that knowledge which is acquired by specific information given with a particular object, as in the instance of notice of dishonour of bills of exchange, and other cases; but, as applicable to the present case, I mean by the term known, knowledge in whatever way it is acquired. Upon the first of these points, I think the sale of the lands and goods of the collector is a condition precedent to putting the bond in suit. The thirteenth section, after prescribing the form of the bond of the surety, says, "every such bond, given by way of such security as aforesaid, shall be prosecuted by the commissioners on any failure or default of the collector," and then there immediately follows, "provided always, that no such bond shall be put in suit against any surety for any deficiency, other than what shall remain unsatisfied after sale of the lands, tenements, goods, and chattels of such collectors, in pursuance of and by virtue of the directions and powers given by this act." Here, there 1835. GWYNNE บ. BURNELL. 1835. GWYNNE บ. BURNELL. fore, is a provision that the bond shall not be put in suit for any deficiency other than what shall remain unsatisfied after a particular thing done. It is quite clear that, if the lands and goods have been sold, the bond can only be put in suit for the difference; but, if there are lands and goods, and they can be sold by the commissioners under the powers and directions of the act, the meaning of the clause is, that the deficiency must be ascertained first; for otherwise it is putting the bond in suit for the whole, when the act says it shall only be so for a deficiency. It is a very reasonable provision for a surety that he shall not be called upon till all has been got from the collector that can be raised. But it is necessary to see what are the powers and directions given by the act by which the deficiency is to be ascertained: they are contained in the fifty-second section, which enacts, that if the collector makes default, in the particulars enumerated, the commissioners are authorised and empowered to imprison the person, and seize and secure the estate, both real and personal, of the collector, wheresoever the same can be discovered and found; and the commissioners who shall so seize and secure the estate, shall, and they are empowered to appoint a time for a meeting of the commissioners; and the commissioners present at such meeting, in case the accounts of the collector be not delivered, or the money detained by him be not paid, are empowered and required to sell and dispose of all such estates which shall be for the cause aforesaid seized and secured. It is said that this clause as to seizing the estates is only directory to the commissioners, as they are only authorised and empowered, and not required, to seize; and that this is more strongly shewn, because, in a subsequent part of the clause, they are required to sell, and, therefore, a different phraseology is used. There is not the least doubt but that the clause as to seizing is only directory, and only gives a discretion to the commissioners that, if the collector makes default, they may seize and secure the estates; and then, if, at the subsequent meeting, the collector does not pay up his deficiency, they are required to sell which is all very reasonable that they shall not be required to sell if he can redeem his estate: and then it is said that, because the clause to seize is only discretionary with the commissioners, they need not seize unless they think proper; and, as the powers and directions as to the seizure and sale of the estates are not, in point of fact, exercised, and need not be so unless the commissioners think proper, the deficiency, after the exercise of these powers, is out of the question, and does not and need not arise, and the bond may be put in suit without regard to that. But I think not: the fifty-second clause is as to the conduct to be pursued towards the collector, and the commissioners will, no doubt, exercise their discretion as will best accord with the discharge of their duties to the Crown, to the parishioners, and the collector: but if they don't think it right to enforce their powers, the sureties are not to suffer by that; the proviso in the thirteenth section is introduced for the benefit of the surety; and the meaning of it, in my opinion, is, that they are not to be called upon till the commissioners have done all in their power to make the collector pay; and if for any reason they omit to do that, they are not to call on the surety. If it be not a condition precedent, I do not see how the surety can have the benefit of the clause; for if the surety be compelled to pay the whole, I don't think he could have a mandamus to the commissioners to seize and sell their power is only to seize and sell if the collector has not paid the money; but if the money has been paid by other means, the collector is no longer indebted to the commissioners: besides, if a mandamus was to go, it must be for the whole direction of the clause; and 1835. GWYNNE บ. BURNELL. 1835. GWYNNE v. BURNELL. that is, that the money arising from the sale shall be paid to the receiver-general; and then the surety would have to petition the Crown to be repaid: and I should doubt whether a court of equity would compel a sale unless to carry the whole clause into effect, and so as that the surety might petition the Crown when the money had got into the hands of the receiver-general. Perhaps the commissioners might of themselves sell, in order to relieve the surety: but besides my doubting the power of the commissioners to sell after they have been paid by the surety, I don't think the surety ought to be put in the situation of having to rely upon what they may be disposed to do. It is very possible that some inconvenience, and, in some cases, loss, might arise if the bond could not be enforced against the surety till the estates are sold; for, certainly, the proceedings under the fifty-second section must be attended with delay. But I don't think we have any thing to do with that consideration; the question is upon the construction of the act as it is presented to us. : Some distinction was raised in the argument as to the meaning of the words prosecute and put in suit; and it was urged that because the word prosecute was used without any restriction the bond might be enforced by action immediately but I think prosecute and put in suit are synonymous. In pleading a writ, the common phraseology is, sued and prosecuted out of the Court, &c., &c.; and if the word sued alone, or prosecuted alone, was used, it would mean the same thing as conjoining the two words; and in the thirteenth clause the restriction, I think, must be applied as well to the prosecuting the bond as putting it in suit. The other question is as to notice or knowledge of the estates and goods; as to which there is more doubt, because there is no such language as notice or knowledge used in the act of parliament; but the construction of : 1835. GWYNNE V. the act of parliament must have a reasonable intendment engrafted upon it, arising out of the existing state of things; and I think it can only be intended that the commissioners shall be compellable to seize and sell, for BURnell. the benefit of the surety, such lands and goods as they know of it is impossible for them to seize things of which they are ignorant; and it would not be any breach of duty in them not to seize lands of which they had no knowledge. If they were negligent in not taking reasonable means, according to circumstances, to find out the effects, it might furnish some means of proceeding against the commissioners; but, as a mere question of construction, whether they were bound on a condition precedent to seize that of which they had no knowledge, any acts of negligence or want of attention in that respect could not arise. I don't think the words wherever the same can be found apply to this part of the construction; and I think that means, wherever locally they can be found. The collector might have some small interest in public works and undertakings where there are a great number of proprietors, as to which the commissioners would have no means of information. So, also, an estate may have come to him as heir-at-law, or devisee of a person who died the day before the bond was put in suit, of which the commissioners know nothing; or he might have a small quantity of goods in some obscure room; and many other cases might be put where knowledge of the fact of having lands or goods would be utterly impossible; and then, if knowledge was not made an accompaniment of the property, a very small amount of the effects, under circumstances before stated, would prevent the bond being sued upon. I do not consider that the question of hardship ought to influence my opinion either on one side or the other: but it may be observed that this construction does not seem to impose any great degree of hardship on the |