Bogg v Pearse and Another

[534] bogg v. peaese and another. Jan. 16, 1851. [S. C. 2 L. M. & P. 21; 20 L. J. C. P. 99. Not applied, Hall v. Taylor, 1858. El. Bl. & El. 112. Distinguished, Bush v. Martin, 1863, 2 H. & C. 325.] Indebitatus assumpsit will not lie against commissioners under a local paying-act, for salary of officers whom the act authorises them to appoint at a salary to be paid out of the rates to be raised thereunder. The proper remedy is, either by an action upon the case, or a mandamus. Assumpsit, by a beadle or street-keeper, against two of the commissioners under a local paving act, for arrears of salary. The declaration stated that the plaintiff, by T. A. J., his attorney, complained of John Pearse and Jesse Curling, who, before and at the time of the commencement of this suit, were, and still remained, two of the commissioners for the time being, appointed, and acting as such, under and by virtue of the statute made and passed in a session of parliament holden in the eighth and nineth years of the reign of Her Majesty, Queen Victoria, intituled "An act for more effectually paving, cleansing, lighting, and otherwise improving the parish of St. Mary Magdalen, Bermondsey, in the county of Surrey," the defendants in this suit, who had been summoned as such commissioners as aforesaid, to answer the said plaintiff, by virtue of a writ issued on, &c.: For that the said commissioners for the time being appointed and acting as such commissioners under and by virtue of the said statute, on, &c., were indebted, as such commissioners as aforesaid, to the plaintiff, in 5001., for wages or salary then due and of right payable by and from the said commissioners, as such, to the plaintiff, for and in respect of his having before then held and filled, for a certain long space of time before then elapsed, the office of street-keeper in and for the parish of St. Mary Magdalen, Bermondsey, in the county of Surrey, under and by virtue of an appointment of him as such street-keeper as aforesaid, at wages or salary in that behalf, [535] before then duly made by the said commissioners, under and by virtue of, and according to, the provisions of the said act of parliament; and that the said commissioners, as such, afterwards, to wit, on the day and year aforesaid, in consideration of the premises respectively, promised the plaintiff to pay him the said sum of money, on request; yet that the said commissioners had disregarded their said several promises, and had not paid the said moneys, or either of them, or any part thereof, to the plaintiff's damage of 5001.; and thereupon the plaintiff, who sued the defendants as such commissioners as aforesaid, brought suit, &c. Third plea,-as to so much of the sum in the declaration mentioned as was claimed by the plaintiff for wages due and owing to him from the said commissioners, from the 4th of December, 1849, until the 27th of May, 1850, that is to say, as to the sum of 351., parcel of the sum of money in the declaration mentioned, and which in and by the said declaration was claimed by the plaintiff as for wages or salary due and payable by and from the said commissioners, as such, to the plaintiff, for and in respect of his having held and filled the office of street-keeper in and for the parish of St. Mary Magdalen, Bermondsey, in the county of Surrey, under and by virtue of an appointment of him as such street-keeper before then duly made by the said commissioners, ò-that the plaintiff ought not to have or maintain his aforesaid action against them in respect of the last-mentioned sum...