1819.

PEPPIN against COOPER.

they will take any bond at all; and there is no other
clause in the act which expressly renders void such
bonds, if not taken in the form prescribed. Indeed, if
the construction' contended for were to prevail, the bond
would be void, if not taken to the amount of the whole
duty, for that is part of the directions of the act. Be-
sides, this absurd consequence, too, would follow, that
the commissioners would be bound to reject a person
who could find one surety, although they might appoint
a collector who could find none; for by the latter part
of the section, they are authorised, if no person can be
found in the district capable of giving the required
security, to appoint the original collectors without any
security at all. The only instance where the act
makes it imperative on the commissioners to take
security at all from the collectors, is where it is required
by the inhabitants of the district, and that is expressly
provided for by the 14th section; but even in that case,
the form of the security is not prescribed. The fourth
plea is bad; because it does not allege the office of
collector to be an annual office, nor that the collector
was appointed for a year, nor that the bond was given
as security for the due performance of the office for a
year. The fifth plea, too, contains no allegation that
this was an annual office at the time the bond was exe-
cuted, nor that the appointment for the one year
mentioned in that plea, was the appointment in respect
of which the bond was given; nor is there any allegation
that the bond was given as a security for the perform-
ance of the duties of the office by Warren, during the
year. In all the cases which have been decided upon
this subject, it has either been alleged in pleading, or
admitted upon the record, that the office of collector'

was an annual office. In the warden of St. Saviour's, Southwark v. Bostock (a), the replication admitted the office to be an annual office. In the Liverpool Water Works v. Atkinson (b), the condition of the bond recited that the defendant had agreed to collect the revenues for twelve months. In Hassell v. Long (c), the plea stated that the office was an annual office, and that the collector held the office for the then current year, and that the bond was made to secure the payment of money collected by him during that current year. And Curling v. Chalklend (d) is a strong authority in favour of the plaintiff. The bond in that case was founded upon a similar act of parliament; and the Court held that the office was not necessarily an annual office, and that the obligation was to be taken for so long as the office might continue. The seventh plea is clearly bad; because the collector, whose goods are to be sold before proceedings be had upon the bond against the surety, is the collector who has made default. The goods of the collector cannot be seized until he had made default; and non constat that Pepper has made default.

Chitty contrà. The act of parliament has imposed a duty on these commissioners which they must strictly perform, in the manner prescribed by the act. They are authorised by the 13th section to take a bond with two sureties, at the least. They have not pursued the powers so given to them, and therefore the instrument is void. [He was then proceeding to support the fifth plea, but the Court intimated an opinion that the office

(a) 2 Bos. & Pull. N. R. 175. (c) 2 Maule & Selw, 363.

(b) 6 East, 507.
(d) 5 Maule & Selw. 502.

1819.

PEPPIN

against COOPER.

was

1819.

PEPPIN

against COOPER.

was an annual office, and directed him to proceed to the other point.] The act expressly directs, that the bond shall not be put in suit while the lands and goods of the collector or collectors are unsold. Now, here it appears that Pepper is a collector under the act, and consequently before the sale of his goods, as well as those of Warren, the bond cannot be put in suit.

ABBOTT C. J. Upon a review of the different enactments of this statute, I am of opinion that this bond, although taken with one surety only, is good and valid. The 13th section of the act is not imperative on, but only directory to, the commissioners. It leaves it as a matter entirely in their discretion whether they will take any bond at all; and if the collectors originally named by the assessors are unable to give the security required, the commissioners are authorised to appoint other persons who are able to give such security; and if none such can be found within the district, the collectors originally nominated (although unable to give security) are to be appointed. There is one case, therefore, where the act is imperative on the commissioners to appoint collectors unable to give the required security. The 14th section provides, that if the inhabitants require security to be taken, and name persons willing to give security, the commissioners shall appoint such persons to be collectors; that section of the act, therefore, contemplates the possibility of an appointment of collectors by the commissioners without any security at all. This does not appear, from any thing alleged in the pleadings, to be a case falling within that section of the act. Inasmuch, therefore, as the act does not expressly avoid a bond taken with one surety, and as the legislature

not only authorises, but compels the commissioners to appoint collectors who cannot give security, I am of opinion that this bond is a good bond; and, therefore, that upon the second plea, (which is founded upon the assumption that this is a void bond,) there should be judgment for the plaintiff. Upon the second point, I am of opinion, that the condition of the bond is satisfied by the faithful collection of rates and duties for the space of one year. It is true, that the words, "at all times hereafter," in the condition of the bond, would, taken by themselves, extend the liability of the surety beyond that period. But these words must be construed with reference to the recital, and to the nature of the appointment there mentioned; and the recital is, that Warren, together with Pepper, had been appointed collectors under the said act of parliament. Now, the nature and duration of that office must be learnt from the act of parliament itself; for if the statute make it an annual office, it is unnecessary to state that fact, either in the bond or in pleading. Now, by the act, the commissioners are to appoint to this office two persons annually returned to them by the assessors: the office of assessor, as well as that of clerk to the commissioners, continuing only for one year. The office, therefore, of collector, who is to be annually returned to the commissioners by officers annually appointed by them, must itself be annual. I think, therefore, that it was the intention of the parties to this bond that the obligation should only be co-extensive with the duties to be performed, and that the fifth plea is sufficient. As to the last point, I am clearly of opinion that this bond might be put in suit without selling the goods of Pepper, who, in this case, was a VOL. II.

G g

mere

1819.

PEPPIN

against

COOPER.

1819.

PEPPIN against COOPER.

mere surety; for, although it appears upon the face of the bond that he is a collector also, still he is not the collector contemplated by the act of parliament, whose lands and goods must be sold before proceedings are had upon the bond against the surety. I am therefore of opinion that there must be judgment for the plaintiff on the second and the seventh pleas, and for the defendant on the fifth plea.

BAYLEY J. I am of the same opinion. The validity of the second plea depends on the question, whe→ ther it be imperative on the commissioners to take a bond with two sureties, and referring to the provisions of the act, which direct security to be taken, it seems to me that it is not, in every case, requisite that a bond should be taken with two sureties. By the ninth section, the assessors are to return the names of two persons to be appointed collectors by the commissioners. The thirteenth section then enacts, "that such persons shall, if required, give security which the commissioners are authorised to take in a bond with two sureties at the least, and if the parties so nominated by the assessors be unable to give the required security, the commissioners may appoint others who can give security; but if no person can be found in the district, who can give such security, then those originally nominated by the assessors, and who could not give the required security, may be appointed." Here, therefore, is a case where the commissioners may appoint collectors who cannot give the required security, and can it be contended that if the party nominated in such a case could not procure two sureties, that the

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