Sarah Bush and Another v Beavan
| Jurisdiction | England & Wales |
| Judgment Date | 28 June 1862 |
| Date | 28 June 1862 |
| Court | Exchequer |
English Reports Citation: 158 E.R. 982
IN THE COURT OF EXCHEQUER AND EXCHEQUER CHAMBER
S C. 32 L. J. Ex. 54, 8 Jur. (N S) 1015, 10 W R. 845, 7 L T 106 Followed, Reg. v. Lyons, 1869, Ir R. 3 C. L. 484 Referred to, Morgan v. Metropolitan Railway, 1868, L. R. 4 C. P. 97, Peebles v. Oswaldtwistle Urban District Council, [1897] 1 Q B. 393. Affirmed nomine Pasmore v. Oswaldwistle Urban District Council, [1908] A. C. 387.
[500] trinity vacation, 26 vict sarah bush and another v. beavan. June 28, 1862.-A claim to a writ of mandamus under the 68th section of the Common Law Procedure Act, 1854, cannot be sustained if there is any other equally effectual remedy. In an action by executors against the clerk of Commissioners for putting into execution a Town Improvement Act (2 & 3 Viet c Ixiii.), and in which action the plaintiffs claimed a writ of mandamus under the 68th section of the Common Law Procedure Act, 1854, the declaiation stated that the Commissioners were indebted to the testator for the "agreed salary " payable by them to him foi services rendered by him as clerk to the Commissioners , and also for othei work by him " as the attorney of and otherwise for" the Commissioners in and about the business of the Commissioners. The declaration then alleged " that the said debts became and were a charge on any monies which might be in the hands of the Commissioners, and which should have been collected by them under and by virtue of the said Act; " and if the Commissioners should not have in their hands any monies sufficient to pay the said debts, "then such debts became a chaige and were chargeable on a rate leviable and to be levied by the Commissioners under the Act." The defendants pleaded to so much of the debts as became due on simple contract, the Statute of Limitations, and to the debts, except the agreed salary, that no signed bill was delivered . also that the Commissioners had no funds whereout they could pay the debts. Held First, that the declaration was bad, inasmuch as assuming that the set vices in lespect of which the " agreed salary /; was claimed were payable out of the rates, the others might be services for which the Commissioners were personally liable, and consequently the remedy was by action, not by claim of mandamus.-Secondly, that on the same principle the two first pleas weie good.-Semble, that the last plea \\as also good. [S C. 32 L. J. Ex. 54 , 8 Jur. (N S ) 1015 , 10 W R. 845 , 7 L T 106 Followed, Reg. v. Lyons, 1869, Ir R. 3 C. L. 484 Referred to, Maiyan v. Mdiopohtan Raimay, 1868, L/R. 4 C. P. 97 , Peebles v. Oswaldtwistlt Utban Dtottict Conned, [1897] 1 Q B. 393 . affirmed nomine Pasmote v. Oswiddt-wistle Uiban Di^tiicl (Jouncd, [1908] A. C. 387.] Declaration by the plaintiffs, executors of John Bush, deceased, against the defendant, as and being the clerk to the Commissioneis for putting into execution the provisions of an act of pailiament made and passed, &c (2 & .5 Viet c Ixm ). intituled "An Act for paving, lighting, watching and improving the town of Bradford in the county of Wilts " For that after the making and passing and coming into force of the said act of parliament, and in the lifetime ot the said J Bush, deceased, the said Commissioners became and were indebted to the saicl J. Bush, deceased, in debts and monies for the agreed salary of the said J. Bush, payable by the said Commissioners to the said J. Bush in his lifetime, for the services of the said J. Bush by him in his lifetime done and rendered for the said Commissioners as the clerk to the said Commissioners duly nominated and appointed in that behalf by the said Commissioners under the [ rovision& of the said Act, and 1 H. 4s C SOL BUSH V. BEA VAN 983 [501] upon retainer of the said Commissioners and at their request. Also for other the work and labour, journeys and attendances of the said J Bush by him in his lifetime done, performed, made and given, as the attorney and solicitor of and otherwise for the said Commissioners on their retainer and at their request, in and about the business of the said Commissioners, and for fees due and of light payable to the said J. Bush in his lifetime, in respect thereof, by the said Commissioners, and for money and materials and necessary things by the said J. Bush in his lifetime provided and expended, and used in and about the said woik and labour and journeys for the said Commissioners and at their request. And for money paid by the said J. Bush in his lifetime for the use of the said Commissioners at their request. And for money found to be due from the said Commissioners to the said J. Bush on accounts in his lifetime stated between the said J. Bush and the said Commissioners of and concerning the monies due to the said J. Bush for the aforesaid work and labour, monies expended, materials provided and monies paid, which said debts and monies before and at the time of the death of the said J. Bush were and remained due and owing to him, and still remain due and owing to the plaintiffs as such executors aa aforesaid And the plaintiffs say that, the same debts and monies being and remaining so due and owing to them as such executors as aforesaid, the same debts and monies became and weie and are a chaige and chargeable upon any monies funds which might be in the hands of the said Commissioners, and which should have arisen and been collected by them under and by virtue of the said Act, and if the said Commissioners should not have in their hands any such monies and funds sufficient to pay and satisfy such debts and monies so due and owing to the plaintiffs as such executors as aforesaid, then the said debts [502] and monies became and and are a charge and chargeable upon a rate and assessment leviable and to be levied amd collected by the said Commissioners under the provisions of the said Act. And the plaintiffs further say that, by reason of the said debts and monies being still owing to them as such executors as aforesaid, they became and were and are, as such executors, personally interested therein, and also peisonally interested in any such monies and funds which may be in the bauds of the said Commissioners, and which should have arisen and been collected by them under and by virtue of the said Act, ajid if the said Commissioneis should not have any such monies and funds sufficient to pay and satisfy such debts and monies to the plaintiffs as such executors as afore-siid, personally interested in the rating and assessing, and collecting and levying a rate to be charged and chargeable with the payment to the plaintiffs as such executors as aforesaid of the said debts and monies so due and owing to them as aforesaid, within the meaning of the Common Law Procedure Act, 1854, to wit, to the amount of all the monies so due and owing to them as executors as aforesaid. And the plaintiffs say that, being so interested, afterwards and within a reasonable time in that behalf before the commencement of this suit, they demanded of and lequested the said Commissioners to pay and satisfy the plaintiffs as such executors as afoiesaid the said debts and monies so due to them out of any such monies or funds as aforesaid, if any, in their hands available for that purpose, and if the said Commissioners had not any such monies or funds in their hands available for such purpose, then the plaintiffs demanded and...
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