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![handle is hein.slavery/ssactsengr0904 and id is 1 raw text is: VII CLA & FIUN Y. GWYNNE V. BURNELL [1837, 1840]
[572] LAWRENCE GWYNNE,-Plaintif in, Error; JOHN BURNELL and JOSEPH
MERCERON,-Defendants in Error [June 27, 1837; -July 28, 1840].
[Mews' Dig. v. 494; xi. 1202. S.C. 2 Bing. N.C. 7; 6 Bing. N.C. 453, 1 Sco. N.R.
711; 9 Bing. 544 (Collins v. 6!wynne). See Madden v. M'Mullen, 1860, 13 Ir.
C.L. 305, and Mansfield Union (Guardians of) v. Wright, 1882, 9 Q.B.D. 683.
On point as to notice, cited in Reg. v. Fay, 1879, 4 L.R. Ir. 613, 623, 631.]
The bond given by a collector and his sureties to the Commissioners of Land
and Assessed Taxes under the 43 Geo. 3, c. 99, is broken if the taxes collected
in any one year are not duly paid up by the collector to the account of that
year.
The breach of the condition of the bond is equally complete, and the sureties are
equally liable, though all the monies collected in the year for which they are
sureties should be in fact paid in, if any part of them should be appropriated
by the collector, and received by the Commissioners, in satisfaction of the
arrears of a former year.
Such appropriation of part of the monies of one year to the payment of the
arrears of a former year, will not prevent the Commissioners from maintain-
ing an action on the bond against the sureties for the year in which the
money collected has been so misappropriated.
The Commissioners may come upon the sureties after they have sold the lands
and goods of the collector, but the seizure and sale of his lands and goods
is a condition precedent to their right of action against the sureties, and
they are not entitled to require notice of such lands and goods in order to
perform the condition.
The plea of the Defendant (a surety in the bond) averred that the collector had
lands and goods, of which the Commissioners had notice, and that they did not
seize and sell. The replication was, that the collector had no property sub-
ject to seizure and sale, of which the Commissioners had notice; the rejoinder
was, that the collector had lands and goods which might have been seized
and sold, but were not mode et forma, as alleged by the plaintiffs, concluding
to the country. The rejoinder did not say anything of notice. The verdict
was, that the collector had lands and goods which might have been seized
and sold, but that the Commissioners had no notice of the collector's lands,
but had reasonable grounds for believing that he had goods.-Held, that
there could be no judgment for the Defendant on these pleadings, nor any
judgment for the Plaintiffs, non obstante veredicto, but only a venire de novo.
The Court below, in which an action is brought, may award a repleader; but
a Court of Error cannot award it.
The Defendants in Error, together with one Collins (since deceased), were the
obligees in a joint and [573] several bond given to them as Commissioners of Land
and Assessed Taxes for the Tower division, in the county of Middlesex, by the
Plaintiff in Error, one of the sureties of Richard Bigg, a collector of the assessed
taxes for the parish of St. Matthew, Bethnal Green, for one year, ending the 5th
day of April 1829. They brought their action in the Court of Common Pleas at
Westminster, to recover of the Defendant (now the Plaintiff in Error) the sum of
1699 3s. 2d., being monies received by Bigg as such collector, and not paid or
accounted for by him pursuant to the Acts of Parliament relating to those duties.
The following pleas were put on the record:
First :-Non est faeturm, on which issue was joined.
Second :-Performance on the part of Bigg, the collector. To this plea the
Plaintiffs, in their replication, assigned several breaches, the third of which was,
that Bigg had not duly paid over to the Receiver-general the monies received by
him as collector of the assessed taxes, in respect of the rates and assessments men-
tioned in the condition; viz. for the year 1828, ending the 5th day of April 1829.
On this an issue was taken by the Defendant in his rejoinder.
Third: That the bond was obtained by a fraudulent representation by the
Plaintiffs, or others in collusion with them, that Bigg had well and faithfully col-
1188](ViewImageLocal?handle=hein.slavery/ssactsengr0904&div=1&collection=&method=preview&ext=.png&size=3)