Chap. XIV. all events, unless the landlord claims any part of the property. In no case where there is a claim for rent can there be an interpleader (d).

Application

must be made promptly.

When it should be made.

When sheriff entitled to

relief.

The sheriff must come for relief promptly after he has notice of the claim, unless the delay, can be satisfactorily accounted for (e). Thus, where the sheriff took possession under a fi. fa. in November, and a few days afterwards, had notice that the goods belonged to a trustee, and kept possession until the 28th January, and did not apply to the Court until the ensuing Easter Term ; it was held that an interpleader, at the instance of the sheriff, could be granted only upon paying the costs of both the other parties, as the sheriff ought to have applied in the term next after the claim was made (f).

The sheriff must apply before the goods are sold and the produce paid over, whether at the time he knew of the claim or not (g); and if he deliver up the goods or any part of them to the claimant, he precludes himself from relief under the Statute, for by such conduct the object of the Act, viz., to determine in one action the right of property in the goods, is thereby defeated (h). The sheriff need not wait for legal proceedings to be taken against him, before he applies for relief (i).

A sheriff is entitled to call upon the execution creditor and claimants to interplead, unless he has acted dishonestly, or his conduct has prejudiced either of the parties. The fact therefore that the sheriff had, down to the time of the seizure of the execution debtor's goods, acted as the attorney of a claimant, and had given him notice of the execution, is not alone sufficient to prevent his calling on the parties to interplead (k). Where, however, an under-sheriff who was acting as attorney for certain creditors of the defendant, informed them of a fi. fa. at the suit of the plaintiff having been placed in his hands to execute, by which means the issuing of a fiat in bankruptcy against the defendant was accelerated, and the plaintiff's execution thereby defeated, the Court refused to grant the sheriff relief (1).

(d) Bateman v. Farnsworth, 29 L. J. Ex. 365.

(e) Devereux v. John, 1 Dowl. P. C. 548; Cook v. Allen, 1 C. & M. 542; Skipper v. Lane, 4 M. & S. 283.

(f) Beale v. Overton, 2 M. & W. 534. (g) Anderson v. Calloway, 1 C. & M. 182; Scott v. Lewis, 2 C. M. & R. 289;

Ireland v. Bushell, 5 Dowl. P. C. 147.
(h) Braine v. Hunt, 2 C. & M. 418.
(i) Green v. Brown, 3 Dowl. P. C.
337.
(k) Holt v. Frost, 28 L. J. Ex. 55; 3
H. & N. 821.

(1) Cox v. Balne, 2 Dowl. & L. 718; 14 L. J. Q. B. 95,

Where the sheriff seized goods under a fi. fa., and a person Chap. XIV. other than the person against whom the process issued claimed the goods and paid out the sheriff under protest; it was held that the money so paid to the sheriff under protest was the proceeds of goods taken in execution within the meaning of Order LVII. r. 1 (b), of the Rules of Supreme Court, 1883, and therefore that the sheriff was entitled to interplead in respect thereof (m). Where the sheriff in the execution of a fi. fa. enters the premises of a person other than the execution debtor and there seizes goods believing erroneously that such goods belong to the execution debtor, the sheriff may, upon interpleader proceedings, be protected against an action for trespass to the land as well as against an action for seizure of the goods, if no substantial grievance has been done to the person whose premises are wrongfully entered (mm).

terested,

When the sheriff is placed in circumstances which give him an Not, when ininterest in either side, the Court will not relieve him; thus the Court refused to interfere in favour of the sheriff, where the under-sheriff's partner appeared to be concerned for some of the parties (n). So if the under-sheriff is the execution creditor, or partner in business with the execution creditor, the sheriff is not entitled to relief (o).

The Court has power to give the sheriff relief, although the Infant claimclaimant is an infant (p).

ant.

Stay of proceedings.

A judge on an interpleader order has authority to restrain an action against the execution creditor, as well as against the sheriff (q). Thus, a sheriff entered the house of A, and seized therein his goods, and also goods belonging to the execution debtor. A. brought an action against the sheriff, who thereupon obtained an interpleader summons, and the judge ordered that the execution creditor be bound as to the goods of A., and that all further proceedings be stayed. It was held that the judge had power to stay proceedings, and the power was properly exercised, it not appearing that the sheriff had committed any excess (r). The sheriff will be allowed his costs of keeping possession, after Expenses of

(m) Smith v. Critchfield, 14 Q. B. D. 873 (C.A.).

(mm) Smith v. Critchfield, supra. (n) Duddin v. Long, 1 Bing. N. C. 299.

(0) Ostler v. Bower, 4 Dowl. P. C. 605. (p) Claridge v. Collins, 7 Dowl. P. C.

698.

(q) Carpenter v. Pearce, 27 L. J. Ex.

143.

(r) Winter v. Bartholomew, 25 L. J Ex. 62; 11 Ex. 704; see Hills v. Renny, 5 Ex. D. 313.

sheriff.

Chap. XIV. applying to the Court, where it is for the benefit of the parties, although not in furtherance of his duty (s).

Position of sheriff, when neither plaintiff nor claimant appears. Appeal.

Sale under interpleader order.

Where neither the plaintiff nor claimant appears, the Court will discharge the sheriff from actions by either of those parties, and permit him to levy his poundage and expenses, and abandon the remainder of the levy (t).

Where it is sought to impeach the judgment of a judge on trial of an interpleader issue with respect only to the finding of the facts or the ruling of the law, and not with respect to the final disposal of the whole matter of the interpleader proceedings (u), an appeal will lie upon such judgment under s. 19 of the Judicature Act, 1873, 36 & 37 Vict. c. 66, as it will from any judgment or order of a judge (x).

An execution creditor is not liable to the person whose goods have been wrongfully taken in execution for any damage sustained by him in consequence of their sale under an interpleader order (y).

(s) Underden v. Burgess, 4 Dowl. P. C. 104.

(t) Eveleigh v. Salisbury, 3 Bing. N. C. 298.

(u) See Ord. LVII. r. 13.

(x) Dawson v. Fox, 14 Q. B. D. 377

(C.A.). See also Robinson v. Tucker, 14 Q. B. D. 371 (C.A.).

(y) Walker v. Olding, 1 H. & C. 621; 32 L. J. Ex. 142; Woolen v. Wright, 31 L. J. Ex. 513.

CHAPTER XV.

MANDAMUS.

Chap. XV.

damus.

THE prerogative writ of mandamus is a high prerogative writ Writ of manof a most extensive remedial nature, and is in its form a command issuing in the Queen's name, from the Queen's Bench Division of the High Court of Justice, and directed to any person, corporation, or inferior Court of Judicature, within the Crown's dominions, requiring them to do some particular thing Where it lies. therein specified, which appertains to their office and duty, and which the Court has previously determined, or at least, supposes, to be consonant to right and justice (a).

Whenever there is a public or official duty, or a duty created by statute, a mandamus will lie, even when no actual damage has been suffered by the applicant (b).

A writ of mandamus will not be granted to enforce the general law of the land, if an action will lie (c), or if there is some other more effectual and more convenient remedy (d). Thus a railway Act enacted, that the company established by it should, in a given event, pay another company a sum not exceeding a given amount, by way of compensation for the loss of tolls by the latter company. The given event having happened, it was held that a mandamus was not the proper mode of compelling the payment of the compensation money, as an action would lie on the statutory obligation (e). So where a mandamus was applied for against justices in a case in which an appeal lay to Quarter Sessions, the Court refused to grant it (f).

Where there is an effectual remedy for a private wrong, as by Where other an action for damages, a mandamus will not lie. Thus where a

(a) See 3 Black. Com. 697; Tapping on Mandamus.

(b) Fotherby v. Met. Rail. Co., L. R. 2 C. P. 188.

(c) Ex parte Robins, 7 D. P. C. 566. (d) Per Hill, J., in re Barlow, 30 L. J. Q. B. 271; Bush v. Beavan, 1 H. &

C. 500.

(e) Reg. v. Hull & Selby Rail. Co., 6 Q. B. 70; 13 L. J. Q. B. 257.

(f) Reg. v. Smith, L. R. 8 Q. B. 146; 42 L. J. M. C. 46; see Reg. v. Biron, 14 Q. B. D. 474.

effectual remedy, mandamus does not lie.

Chap. XV. party-wall had been pulled down, and rebuilt under the Metropolitan Building Act, but the paper and decorations had not been replaced by the defendant; it was held that a mandamus, on the application of the tenant of the adjoining house, would not lie to replace the paper and decorations, but that the remedy must be by action (g).

There must be

tion in order to obtain man

damus.

In addition to the absence of any other effectual remedy, there a legal obliga- must also be a specific legal right, to authorize the issuing of a mandamus (). In a case where an officer applied for a mandamus against the East India Company to compel them to pay over to him certain arrears of pay, Lord Campbell, C.J., in delivering the judgment of the Court, says (i), “The applicant must make out that there is a legal obligation on the East India Company to pay him the sum he demands, and that he has no remedy to recover it by action. The latter point becomes material only when the former has been established, for the existence of a legal right or obligation is the foundation of every writ of mandamus; but it seems to us that the attempt to shew that there was any obligation on the East India Company which the law will enforce to pay any sum of money to Sir Charles Napier, either as commander of the Queen's forces, or as commander of the native troops, has entirely failed. A legal obligation which is the proper substratum of a mandamus, can only arise from common law, from statute or from contract. Of course the obligation here contended for cannot arise from the common law, and is not rested on contract. We have, therefore, to see whether there be any enactments of the legislature by which it can be supported. It was not contended that an officer in the Queen's army at home could apply to us for a mandamus on the ground that his pay is improperly withheld from him; and the application is entirely founded on certain statutes respecting the East India Company and the government of the dominions belonging to the Crown in India." The Court came to the conclusion that there was no statutory obligation upon the Company to pay the amount claimed, and refused a writ of mandamus; holding that the grant of pay was an imperfect obligation which wanted the vinculum juris, although binding in

(g) Reg. v. Ponsford, 12 L. J. Q. B. 313; i D. & L. 116.

(h) R. v. Nottingham Waterworks Co., 6 A. & E. 355.

(i) Ex parte Napier, 21 L. J. Q. B. at p. 333. The court consisted of Ld. Campbell, C.J., Coleridge, J., Erle, J., and Crompton, J.