an order that, on payment of the sum of 17. 6s., the plaintiff's costs of execution in the action of Hartley v. Shemwell, to the plaintiff in that action, or to the sheriff on his behalf, the defendant Shemwell be discharged out of custody as to that action. Shemwell was accordingly discharged out of custody. The sum of 301. 5s. was not actually paid but Marples had given credit to Hartley for that sum against the 677. 1s. 6d., the costs of the interpleader issue. Field now moved for a rule calling upon Marples and Shemwell to shew cause why the three orders of Bramwell B., dated respectively 15th, 16th and 20th March, 1861, should not be rescinded, all proceedings thereunder set aside, and Hartley be at liberty to issue a new writ of ca. sa., and arrest Shemwell for the amount of the judgment debt. The Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125. s. 61., provides that "it shall be lawful for a Judge, upon the ex parte application of such judgment creditor either before or after" "oral examination, and upon affidavit by himself or his attorney, stating that judgment has been recovered, and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, to order that all debts owing or accruing from such third person to the judgment debtor shall be attached to answer the judgment debt." In order, therefore, to entitle Marples to an order for an attachment under this section, it is necessary for him to establish, first, that he is a judgment creditor of Hartley, and, secondly, that there is another person indebted to Hartley. Now Marples is not a judgment creditor of Hartley within 1861. HARTLEY V. SHEMWELL. MARPLES V. HARTLEY. 1861. HARTLEY V. SHEMWELL. MARPLES V. HARTLEY. the meaning of sect. 61; nor is any other person indebted to Hartley. By the arrest of Shemwell under the writ of ca. sa. Hartley lost his right to issue a writ of fi. fa. The proceedings under the Act with respect to an attachment of debts are in the nature of a statutory execution. By sect. 63, if the garnishee does not pay into Court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, or if he does not dispute the debt, or does not appear to the summons issued against him, the Judge may order execution to issue against him to levy the amount due. No execution can issue against the goods of the garnishee while he is in custody under a writ of ca. sa. [Hill J. As long as a judgment creditor holds the body of his debtor he cannot take another step; but the debt is not extinguished.] In Jauralde v. Parker (a), where a judgment creditor proceeded against a garnishee, the defendant pleaded that the plaintiff had sued out a writ of ca. sa., and, before the issuing of the writ of attachment, had caused the defendant to be taken in execution: and, on demurrer, the Court held the plea good. [Blackburn J. There the judgment creditor had arrested the judgment debtor; here the judgment debtor had the garnishee in custody. Crompton J. I think the order for payment of the costs of the interpleader issue has the effect of a judgment; and that the arrest of the garnishee is not an extinguishment of his debt to Hartley.] Per CURIAM. (COCKBURN C. J., CROMPTON, HILL and BLACKBURN JS.) Rule refused. (a) 6 H. & N. 431. 1861. The QUEEN, on the prosecution of the Mayor, Saturday, 1. Quære whether, under any circumstances, a mandamus lies to compel a party to institute legal proceedings against another? 2. A duty having been imposed upon a party by statute to levy certain moneys from other parties, and pay over to another a portion of the sums levied; a mandamus was issued directing him "to take the necessary and legal measures and proceedings, for obtaining and recovering payment": Held, per Crompton and Blackburn Js. (Cockburn C. J. dissentiente), that the words "legal measures" did not necessarily mean the instituting legal proceedings. 3. Semble that a mandamus may be issued against a party for a matter in respect of which he is liable to an action or to a suit in equity. 4. The mandatory part of a writ of mandamus may be very general; but the return must be very minute in shewing why the party did not do what he was commanded: per Crompton and Blackburn Js. MAN ANDAMUS to the Commissioners appointed in pursuance and acting in execution of stat. 43 G. 3. c. xxi., intituled "An Act for abolishing certain dues called Petty Customs, Anchorage and Groundage, and for improving the port of the town of Southampton; for making a convenient dock for the security of ships; for extending the quays and wharfs, and making docks and piers in the harbour there; and for erecting warehouses for the safe custody of goods and merchandize, and for imposing certain duties for the above purposes;" and stat. 50 G. 3. c. clxviii., for altering and amending the previous Act. The writ recited that, by the first mentioned Act; after reciting, among other things, that the Mayor, bailiffs and burgesses of the town and county of the town of Southampton had, by virtue of several charters granted to them by His Majesty's progenitors, “Legal measures." Pleading. 1861. The QUEEN V. of Port of SOUTHAMP TON. Kings and Queens of England, received and been entitled, or claimed to be entitled, to receive certain duties Commissioners called petty customs upon the exportation and importation of all goods and merchandize out of and into the port of Southampton from the owner, exporter or importer of such goods and merchandize, and also certain other duties called anchorage and groundage payable by all vessels coming within and not belonging to that port, together with wharfage and cranage, from the owners and masters of all such vessels; and that the said rights, privileges, immunities, exemptions and advantages the said Mayor, bailiffs and burgesses were willing to relinquish and give up, upon a compensation being made for the loss and diminution that would accrue to them by abolishing the same: it was, among other things, by the 13th section thereof enacted that, from and after the second Monday after the passing of that Act, the duties called petty customs, wharfage, cranage and anchorage and groundage should cease and be no longer paid, and that there should from thenceforth be paid unto the Commissioners for putting that Act into execution, as well by the persons being respectively members of the corporation of the town and county of Southampton, and the owners and masters. having the command of vessels belonging to that port, as by all and every person and persons whomsoever, for all goods, wares, merchandize and commodities exported from or imported into the port of Southampton, and which should be lauded in or shipped from the dock or basin to be constructed under the authority of that Act, or at or from any of the legal quays in that town, and for warehousing the same, and for all ships or vessels coming into the pier, dock or basin, or the road for 1861. V. Commissioners ships there in that Act referred to, the several and respective rates, wharfage, keelage, boomage, pier dues, The QUEEN dock dues or duties mentioned and specified and enumerated in the table thereunto annexed, and no other rates, customs or duties for the same or in respect thereof under any denomination whatsoever. And by the 19th section it was enacted that all and every such sum and sums of money as should be raised and received by the duties aforesaid, or recovered for any forfeitures by that Act appointed, other than so much thereof as should be allowed to the collector or other officers for collecting and managing the said duties, or for charges of recovering the same, should be by the said Commissioners applied and disposed of as follows: in the first place, . to the payment of one fifth part of the said sum or sums of money to the Mayor, bailiffs and burgesses for the time being and their successors yearly and every year after the commencement of that Act, as and for a compensation for the loss and diminution which would accrue to them by the abolishing the duties called petty customs, wharfage, cranage, anchorage and groundage; and from and after the payment thereof the residue should be applied and disposed of to the building and repairing the said pier, dock or basin, warehouses and other works, and for securing, preserving, amending and maintaining the said dock or basin and harbour of Southampton, and for placing, fixing and maintaining at all necessary places a sufficient number of booms for marking the channels in that Act before enumerated. And that by the 48th section it was further enacted that, when any action or suit should be brought by order of the Commissioners against any person or persons in pursuance or by virtue of that Act, the same |