[from Advocate's Notebook, 1847]

LIB. PLI., 8th May, 1804. No. 22.

Deemsters LACE and CRELLIN.

WILLIAM KELLY v. PAUL STEPHENSON.

The pltff: in this suit had filed his declaration at law on the 8th May, 1804, stating his claim to certain mill-Lands, in the parish of Braddan, called Mill Oats, and certain intack lands, called the Lheaghey, by the detention of which, by the deft., he charged that he was damaged in the sum of 500, and that he had brought his suit "for the purpose of recovering the said mill-lands, and premises, with the appurtenances, and costs of suit, according to the due course of Common Law."

In July, 1805, "upon the motion of the pltff's. advocate, and good cause having been shewn" a commission was ordered to be opened to take the depositions of witnesses in England, returnable on or before the next court day, and the cause was continued until next court.

At the following court, in October, the cause was heard, and the jury returned a verdict that "the pltff: recovered the premises actioned for."

In July following, Redmond Stowell, for the pltff., presented his petition to Deemster Lace, stating that he had obtained a verdict against the deft. for recovering of the lands, and had afterwards caused deft. to be summoned before him for possession of the lands, and for the costs of suit in the usual form. That his honour had ordered possession of the lands to be given, but had ordered the question of costs to be reserved for the consideration of the two Deemsters, the judges of the Court of Common Law, and prayed a hearing of the petition.

In February, 1805, the petition was heard before Deemsters Lace and Crellin, and they adjudged that under the circumstances attending the cause,-" the pltff. ought not to recover costs of suit," and they dismissed the petition.


LIB. CAN., 1810.

JAMES BANKS v. JOSEPH IRVINE.

On the 20th November, 1809, complnt. took out an action of arrest against the deft. for 33 9s. 10d. money had and received by deft. for the use of the complnt.

17th December, 1809.

The Court minute is-"Deft. being imprisoned under this action -continued to give the complnt. an opportunity of appearing to prosecute in person, or by his advocate or attorney, duly appointed by letter of attorney."

1st February, 1810.

Complnt. not appearing in person, or by any proper person sufficiently authorised and instructed to prosecute this action, and the deft. being a prisoner under the same, the Court is of opinion this action ought to be dismissed with costs for want of due and effectual prosecution; and the same is hereby ordered and de-creed accordingly.

C. SMELT.

On the 2nd February, 1810, complnt. took out another action against the deft. for the same sum, stating, that that sum was due to him over and above all just allowances for wages, salary, and maintenance of deft. during the time he was in the deft's. employ.

1st March, 1810.

Upon consideration of the former action, and the decree thereon, &c., this action is dismissed, with costs,-without prejudice to the complnt. recovering any demand he may have against deft. out of his property and effects, and without prejudice to deft. seeking relief against complnt., for the false imprisonment of the deft. under the action, as he may be advised.

C. SMELT.


COMMON LAW, 15th October, 1811.

ELIZABETH BREW, Widow of James Brew, v. WILLIAM BREW.

The declaration in this case stated, that James Brew the elder, and Elizabeth Brew, his wife, both deceased, the parents of James Brew, deceased, by sale or settlement on 2nd August, 1794, in consideration of 1000, and an annuity of 50 to the grantors and the survivors, granted, bargained, declared, established, and settled, all the estate, in the parish of Andreas, of James Brew the elder, called the Guilcaugh, with the intacks belonging, to hold unto the said James Brew the younger, from the 12th November, ensuing the date of the deed.

In pursuance of the deed, James Brew obtained possession of the estate, and held the same to the day of his death, in July, 1797 ; and pltf now charged that, on his death, she became absolutely entitled to one-half of the estate as his widow, her husband having become entitled thereto as purchased lands, and not as inheritance ; and that the said James Brew was entitled thereto as a chattel interest, subject to the same laws and customs as purchased lands: or at least she charged, that she, as widow, became entitled to a right of dower in the estate, subject to half the mortgages chargeable on the premises at the time the deed was granted, or to the half of such mortgages as she herself may have signed. That the pltff. had resided in England from the death of her husband, and the deft. had entered into possession of, and retained the whole of the lands, and the rents, issues, and profits thereof; wherefore she brought her suit, claiming one-half of the said estate, or that her right might be established.

15th October, 1811.

"The jurors on their oaths say, that the pltff. recovers a right of dower of and in the lands and premises in the declaration men-tioned, as of an estate of inheritance, according to the laws and customs of this Isle, subject to such mortgages and encumbrances as the pltf , in the capacity of widow of James Brew, jun., de-ceased, may appear to be subject unto."

9th September, 1812.

The Keys affirmed the verdict.

There was an appeal afterwards entered to the Privy Council, but it was not prosecuted, further than its acceptance in this Island,


26th April, 1817.

Deemster GAWNE.

Wm. WATTERSON, late Coroner, v. HARRISON.

The petition in this matter stated, that, in 1811, and 1812, executions were put into petitioner's hands to execute for the deft. That by payments made, jury's returns obtained, and executions returned, there was a balance left due to the petitioner of twelve shillings.

That the accounts being so nearly balanced, no demand was made on the petitioner for five years, until lately an account was served on petitioner for the whole amount of the executions, without any credits, and an order was granted against petitioner for 1312s. 11d., on the 12th April, 1817, without prejudice to the petitioner establishing his account. That the petitioner was then imprisoned under the said order, with no prospect of being liberated until a rehearing, when he hoped to shew there was nothing due.

That the deft. was off the Island, and the petitioner considered it unjust that he should be detained in prison until the said cause could be fully heard.

Wherefore he prayed a hearing of the petition, and a rehearing of the cause on the first court day after the return of the deft. Har-rison, and that the said judgment might be set aside, and the peti-tioner liberated in the meantime.

On the 26th April, the Deemster ordered the petition to be reheard on the 28th ; and on the 28th, upon hearing the petition, the Deemster ordered that the petitioner should be liberated from Castle Rushen upon entering into bonds, to the amount of the judg. ment against the petitioner,-that he would surrender himself a prisoner under the judgment when lawfully required; and the petition was continued.

On the 10th May, 1817, the Deemster made the following judgment

Upon hearing this petition in presence of parties, and upon reading a receipt signed M. and M. Harrison, which names were ad-mitted by the deft. Matthew Harrison to be of his handwriting, and bearing date the 17th October, 1812, which receipt was not exhibited nor pleaded on the original hearing of this cause when the order complained of was obtained; I am of opinion that the said receipt is a sufficient bar to the deft. proceeding against the

petitioner for the settlement of any transactions previous to the said 17th October, 1812, in this court; and that the said order against the petitioner in favour of the said Matthew Harrison, bearing date the 12th April, 1817, ought to be vacated and set aside; and the same is hereby vacated and set aside accordingly. THOS. GAWNE.


LIBER SCACCARIUS, 24th May, 1819.

Deemster GAWNE.

THOMAS FAYLE v. WILLIAM. RAY.

The pltff: sought to obtain execution against the deft. for the sum of 200, the balance of a bond and security originally passed by the deft. to William Gill, sen., for 400. Part had been paid, and the balance was assigned over to the pltff.

For the deft. it was objected, that William Gill, deceased, had sold to the deft. certain lands in Kirk Michael for 800, of which sum, 400 was paid, and the present security was passed for the balance. 200 more had been subsequently paid ; but since that the Lord of the Manor had claimed a large portion of the lands sold by the said William Gill to the deft., upon the ground that they had not been licensed, and no lord's rent had been affixed upon them. The parcels of land so claimed by the lord were worth, in cash, 300, and forasmuch as the bond was given for the balance of the purchase-money of the property, it was contended that no execution ought to be granted until the title was made perfect and the claim of ' the lord" set aside.

For the complnt. it was replied, that the pltff. was a bona fide holder for value, and had therefore a good right to recover against the deft., who, if aggrieved, might seek redress from the parties who sold to him.

The Court held with the pltff., and granted execution for 200, with interest and costs. The deft. appealed, in succession, to the staff' of government,, and the King in council; but each court affirmed the judgment, and dismissed the appeal with costs.


LIBER SCACCARIUS, 30th January, 1820.

The Right Rev. GEORGE MURRAY v. CAESAR TOBIN.

C. GENESTE for Pltff.; JOHN LEWELLYN for Deft.

This was a petition of appeal of Caesar Tobin to Governor Smelt, stating, that the cause pending by bill in the Exchequer Court was set down to be heard at an Exchequer Court, to be held on the 11th January, 1820, but as no precepts had been issued by his Honour to the Coroners to convene a jury for trial, the petitioner had presented his petition, praying that the rule for a hearing might be set aside or varied, and that his Honour might be pleased to issue precepts for the trial of the said cause before a jury, according to the former practice ; and further stating that on a hearing his Honour had dismissed the petition. That the petitioner felt aggrieved by the said judgment, and desired to appeal therefrom to the King in council.

30th January, 1820.

I decline accepting this appeal, conceiving that the accepting thereof might delay and embarrass the proceedings in this cause. But it is hereby ordered that the appeal be recorded, and do accompany the proceedings.

C. SMELT.


EXCHEQUER BOOK, 10th December, 1822.

REPLY OF THE DEEMSTERS TO A QUESTION OF HIS GRACE THE DUKE OF ATHOL.

In reply to his Grace the Governor-in-Chief's query, -" whether lands granted or settled on any other son than the heir-at-law, or on any other person for a nominal consideration, are to be taken as purchased lands in the hands of the grantor, and are liable to be attached under executions against such grantor? "-

" I am of opinion that lands granted for a nominal consideration on any other son than the heir-at-law, or on any other person, are in the hands of the grantor a chattel, and of course subject to be attached under execution."

" T. GAWNE,

"Ballagawne, 19th December, 1822." "First Deemster."

" Summer Hill, 8th March, 1823.

"My Lord Duke,

"In answer to your Grace's query received this day, I beg to say, that lands granted or settled on any other son than the heir-at-law, or on any other person, for a nominal consideration, are to be taken as purchased lands, and as such, are liable to be attacked under execution against the grantee."

" I have the honour to be,

" My Lord Duke,

" Your Grace's obedient servant,

"J. J. HEYWOOD." "To his Grace the Governor-in-Chief, &c. &c."


LIBER SCACCARIUS, 1823.

Governor SMELT.

CATHARINE COWLE v. WILLIAM CANNELL and WILLIAM SAYLE.

WM. STEPHEN for Pltff

This was a petition to the Governor, stating, that an Ecclesiastical Court order had been granted against Elizabeth Cowle, from which she appealed and entered into bonds in the Rolls' Office in the penal sum of 15, "in usum Domini regis," to prosecute the said appeal, and if judgment should be affirmed, to pay costs. The present defts. became the bondsmen for the appellant. The appeal was heard and dismissed, with costs to be taxed, amounting to 5. The judgment of dismissal, with a taxed bill of costs, was enforced, and a jury's return of "no effects" returned against the said Catharine Cowle; and petitioner now submitting that the said defts., in terms of the bond entered into by them, were bound to pay the petitioner-the amount of the said bill of costs ; the petitioner prayed judgment for the said costs, with the costs of the jury's return and of this application.

Judgment granted accordingly, with costs.


EXCHEQUER BOOK; 6th February; 1823.

WILLIAM CALEY v. CATHARINE CORLETT and OTHERS.

EVAN GELL for Pltff.

This was a petition of appeal by Caley, stating that on the 20th August, 1822, he sued out a Trespass Jury's warrant to discover whose beasts had trespassed on his (the pltff's.) corn and grass.

The jury awarded damages against the defts., and the proceedings and verdict were duly returned and received by the Deemster on the 9th October last.

The deft. Corlett thereupon presented a petition to the Deemster, stating, that there was not a sufficient boundary between the parties, which, upon the hearing of the cause, the pltff. admitted to be true, inasmuch as that a part of the boundary ran across the Sulby river, where no fence could be erected and maintained.

The Deemster quashed the said jury's verdict, and set it aside, with 1 14s. costs.

From this judgment of the Deemsters, the present appeal was brought; and for cause of appeal, pltff alleged that by the law of the land the respndt. was bound not to permit her beasts to stray or wander without a herd; and if they strayed they were liable to be impounded.

6th February, 1823.

Upon a hearing, the Court reversed the Deemster's judgment.


June, 1823.

Deemster CHRISTIAN.

CHRISTIAN v. CRYE.

ROPER for Pltff.; GENESTE for Deft. , The Deft. pleaded that no account had been furnished to him, which, by the act of 1777, Mills, 369, ought to have been delivered three days before the hearing. If a fair account was gone into, he did not think he owed pltff. a farthing, and prayed for a dismissal. Pltfl:-The debt is justly due, and the cause ought only to be continued to furnish an account, and not dismissed.

Deemster CHRISTIAN.-Here is the very thing the act was meant to prevent. If an account had been furnished, perhaps it might have been settled out of court ; or it might have been found that there was not any thing due, and litigation would have been prevented.

Dismissed.


June, 1823.

Deemster CHRISTIAN.

QUAYLE v. SAMPSON.

KINLEY for Pltff.; Deft. in Person.

Deft. appeared and acknowledged the debt, but stated that the pltff had never demanded it, or he would have paid it without coming into court.

Pltff contended, that the summons was a sufficient demand, and that deft. should have paid when summoned, but having put pltff to the expense of employing an advocate, supposing his claim would be resisted, deft. ought to pay costs.

Deemster CHRISTIAN granted an execution for the debt, upon the defts admission, but refused to allow the costs.


23rd June, 1823.

JEFFERSON v. CAINE.

This was a petition for the rehearing of a cause which had been decided against the petitioner at a former court.

The deft. called for the witnesses produced by him on the former hearing, but they did not answer, and it was found that the petitioner had neglected to charge them to the court. The deft. therefore moved to have the petition dismissed with costs.

The petitioner contended that he was not bound to produce any but his own witnesses.

Per Curiam.-It is an invariable rule that, in all matters of rehearing, the petitioner is bound to produce every witness that was examined at the previous court on both sides. Having neglected to do this, the cause must be dismissed with costs.


23rd June, 1823.

Deemster CHRISTIAN.

EDWARD GELLING v. JOHN MOORE.

ROPER for Pltff. ; QUIRK, H.B., for Deft.

This was a petition praying to have a cause heard for a third time.

The deft. resisted the application upon the ground, that the cause having been heard and reheard, and no witnesses examined at either of the former hearings, the cause could not be again gone into.

For the pltff it was argued, that witnesses not having been ex-amined was the very reason of this application being made.

Per Curiam.-The cause has already been heard and reheard. It was quite competent to the petitioner to mend his case, and bring forward his witnesses, if any he had, upon the rehearing. If he has neglected that, the Court cannot help him now ; the petition must be dismissed.


June, 1823.

Deemster CHRISTIAN.

CUBBON v. DAVIDSON.

GENESTE for Pltff; ROPER for Deft.

Deft. moved for a continuance on account of the absence of a material witness.

GENESTE for the pltff-The application must be supported by affidavit, and, if sufficient cause be shewn on the face of it to have the suit continued, it must be on payment of the costs of the day.

ROPER, for: the deft.,. produced an affidavit, but contended that the costs ought to abide the issue of the suit.

Deemster CHRISTIAN.-I shall allow a continuance on payment of the costs of the day, without reference to the final issue of the cause,-the pltff having come prepared with all his witnesses to prove his case, and the continuance being an indulgence to the deft.


LIBER SCACCARIUS, 7th August, 1823.

Governor SMELT.

THOMAS TEARE and JOHN CANNELL v. ROBERT KELLY.

J. Quirk, jun., for Pltff.

The petitioners became bail for John Taggart for the due prosecution of an appeal in a cause wherein Robert Kelly was complnt. and the said John Taggart, with others, was deft. The said John Taggart did not prosecute his appeal, and the petitioners became liable for the costs; in consequence whereof the petitioners paid to James Quirk, Esq., who had been Kelly's advocate from the beginning, the full amount of his costs ; nevertheless Robert Kelly, the present deft., who had also been advocate for the said complnt. Robert Kelly, claimed to be paid his costs under the same judgment, and petitioners prayed that the said Robert Kelly might be decreed not entitled to recover any further costs than those paid to the said James Quirk.

On a rehearing, the Court decreed that petitioners, having paid James Quirk, Esq., the advocate employed with the said Robert Kelly, had fully satisfied the judgment, and adjudged them entirely freed from further liability.


LIBER SCACCARIUS, 8th August, 1823.

Governor SMELT.

GEORGE QUAYLE v. ROBERT KELLY.

ROPER for Pltff. ; Deft. in Person.

Pltff presented his petition, stating, that he had employed deft. as his advocate to recover many accounts due to a banking concern, in which petitioner was a partner. That in November, 1818, having received large sums of money, he retained them in his hands, and furnished a bill of costs, amounting to 306 11s. 0. That the deft. had lately furnished a second bill, amounting to 83 18s. 3d., and had also furnished an account current, in which, after taking credit for costs, he admitted himself to be indebted to the petitioner in the sum of 57 10s. 8d. That the costs, though acquiesced in by petitioner, were never taxed, and it was submitted that, although so acquiesced in by petitioner, yet, not having had legal advice, if petitioner at any time afterwards discovered the charges were unjust and illegal, he was, by law, entitled to demand a taxation, and therefore he prayed that they might be taxed before the Clerk of the Rolls.

Upon a hearing the Court ordered the costs to be taxed accordingly.


LIBER SCACCARIUS, 2nd October, 1823.

Governor SMELT.

THOMAS BREW v. JOHN CORLETT.

LLEWELLYN for Pltff.

This was a petition to be allowed to enter a traverse from a jury's verdict, notwithstanding twenty-one days had elapsed since it was given.

The petition stated, that on the 26th June, 1823, the petitioner was summoned before his Honour Deemster Heywood for the amount of a Trespass Jury's verdict; whereupon, feeling aggrieved thereat, he moved to have the said verdict recorded, which was ordered accordingly. That eight days afterwards the petitioner applied at the Rolls' Office to enter a traverse, but no such verdict was on record. Nineteen days afterwards petitioner again applied for the same purpose, but still no verdict was recorded. Upon a third application petitioner was informed the time was expired for entering a traverse, and petitioner had reason to believe that the said verdict had lain a considerable time amongst some loose papers in the Rolls' Office, without being placed upon the file. That the said Corlett having summoned the petitioner before the Deemster for the amount of the said verdict, the petitioner presented his petition, stating the matters aforesaid; and, on a hearing on the 25th August, the Deemster allowed the petitioner fourteen days to make application to the Governor for relief, and granted a stay upon all proceedings to enforce the execution, and petitioner now prayed that he might be allowed to enter his traverse from the said verdict. Upon a hearing, the Court decreed that the petitioner ought to be allowed to traverse the said verdict, although the same had been recorded more than twenty-one days.


3rd November, 1823.

Deemster CHRISTIAN.

MOORE v. QUILLIAM.

KINLEY for Pltff.; QUIRK, jun., for Deft.

The deft. not appearing, pltff moved for a presentment. QUIRK, jun., for deft. appeared to state that the deft. had not been legally summoned, and therefore no presentment could be granted against him.

For the pltff it was alleged that the deft., knowing he was to be summoned, in order to defeat the ends of justice, had bolted and barred his door against the Coroner. The Coroner thereupon left word, with the deft's. nearest neighbour, that the deft. was charged to court at the suit of the pltff, and desired him to tell the deft. The neighbour did accordingly tell him, and was now in court to prove it.

Deft. admitted that the neighbour had delivered the message, but he shewed no authority, and deft. was not bound to attend to it. It might have been a hoax of the neighbour.

Per Curiam.-If the Coroner had left the warrant with the neighbour, and the neighbour had delivered the warrant with the message to the deft. three days before the court, under the circumstances of the case, rather than the ends of justice should be defeated, I would have allowed the facts to be proved, and would have held the summons sufficient ; but, as it is, I am bound to decide that no legal summons has been effected.


LIBER SCACCARIUS, 7th November, 1824.

THOMAS JEFFERSON v. ROBERT RICHARDS.

STEPHEN for Pltf.

This was a petition to the Governor, stating, "that on the 2nd June, 1823, the petitioner had obtained Deemster Christian's order against deft. for the delivery of twenty-eight bolls of beans within three weeks from the date of the order, he receiving thirty tons of lime from the petitioner." That the order was enforced ; the deft. refused to comply with it-whereupon a writ of contempt was issued against the deft. and he was imprisoned thereunder. That being so imprisoned, he did afterwards enter into a bond, in the Rolls' Office, to the King, in the penal sum of 10, with two sufficient sureties, that he would comply with the terms of the said order. That the deft. was thereupon released from goal; that, being so released, instead of complying with the said order, he only delivered three bolls, two bushels, ånd two kishens of beans, leaving twentyfour bolls and upwards still due. Wherefore the petitioner prayed that the deft. might be ordered to be remanded to prison, there to remain until he fully complied with the said order, and the bond entered into by him as aforesaid, and paid the costs of his contempt and of the present application.

Upon hearing this cause, the Court decreed "That the deft. had not complied with the terms of his said bond, and was there-fore ordered, for his contempt, to be apprehended and impri-soned in Castle Rushen, there to remain until further orders, and that he do pay the costs of this suit, to be taxed.


LIBER SCACCARIUS, 15th November, 1823.

The DUKE of ATHOL.

THOMAS FAYLE v. WILLIAM RAY.

Quirk, sen. for Pltff:

Thomas Fayle obtained a judgment against the deft., from which the deft. appealed to the King in council. The appeal was dismissed, and the judgment of the court below was affirmed with 20 costs. The pltff. now presented his petition to the Governor, praying execution for the said 20, and that the judgment of the court below might be enforced against the deft., by virtue of the judgment of affirmance of his Majesty in council.

The Court decreed that the said order, judgment, or decree of his Majesty in council be forthwith carried into execution, and that the deft. do pay unto the petitioner the costs of this application, to be taxed.


24th November, 1823.

Deemster CHRISTIAN.

KENNAUGH v. CUBBIN.

J. QUIRK, jun., for Pltff. ; KINLEY for Deft.

This suit was brought before the Deemster to recover the sum of 1 13s., which was properly cognizable before the High Bailiff of Peel; but the pltff. stated that the only advocate in Peel was the High Bailiff's partner, and he was employed for the deft. ; and, though no doubt could be entertained of the High Bailiffs impartiality in the administration of justice, yet it must be considered a reasonable plea for bringing the matter before the Deemster, though under forty shillings, as the statute, though it limited the High Bailiff's jurisdiction, did not take away the Deemsters.

No objection being offered by the deft., the Court heard the cause, and it was continued for the production of papers.

31st November, 1823.

On hearing the cause this day, it appeared the pltff: was indebted to the deft. a larger sum than the pltff. claimed from him.

The cause was therefore dismissed with costs.


24th November, 1823.

Deemster Christian

CRETNEY v. CANNON.

ROPER for Pltff. ; QUIRK, Jun. for Deft.

Deft. admitted the debt, but offered to leave it to the pltffs. oath whether he had not promised to allow him two months time to pay it.

Pltff being sworn and examined, denied having made any such promise.

Deft. then wished to examine witnesses to prove a set off. Pltffs. counsel objected, as the deft. had left it to the pltffs. oath.

Deemster CHRISTIAN over-ruled the objection. The pltff having been examined only to one particular point did not preclude the deft. examining witnesses to prove any other point. If the whole case had been submitted to his oath it would have been different. Witnesses were then sworn, who proved a set off, and pltff obtained judgment for the balance.


LIB. ScAc., 4th Dec., 1823.

WM. ROPER v. ARCH. CREGEEN and PATRICK CARALAGH.

This was a petition addressed to the Duke of Athol as Governor-in-Chief and Chancellor, stating, that John Skillicorn obtained the Deemster's execution against Thomas Gawne for 10, with 1 12s. 2d. costs, which, on the 13th Oct., 1823, was placed in the hands of deft. Cregeen, who was then Coroner of Rushen, to be enforced. The amount of this execution was arrested in the hands of the Coroner, at the suit of Patrick Caralagh, for debt due by Skillicorn to him. That the original deft. Gawne had resisted the suit of Skillicorn, whereby a taxed bill of costs bad become due to the petitioner (as Skillicorn's advocate) of 5 7s. 4d., and petitioner prayed, that the Court would order the said Arch. Cre-geen to pay the said sum to the petitioner out of the amount of the said execution.

It was argued, upon the hearing of this cause, that the original pltff. Skillicorn, having incurred a bill of costs to the present peti-tioner of 5 7s. 4d. in the prosecution of his suit against Gawne, over and above the amount of costs awarded against Gawne in the execution, the petitioner had a lien upon the entire judgment in preference to every other creditor of the said Skillicorn for all the costs legally incurred in obtaining that judgment.

The Court held with the petitioner, and ordered the amount of his claim to be paid to the petitioner out of the amount of the said execution, in preference to all other demands against the same.


LIB. SCAC., 5th Dec., 1823.

DUKE of ATHOL.

JOHN MOORE v. JOHN QUIRK.

J. QUIRK, for Pltfl:

This was an appeal from Deemster Christian's judgment, and, upon a hearing, it was remanded, it appearing that the evidence of the witnesses, produced and examined in the court below, had not been committed to writing.


LIB. SCAB., 23rd Dec., 1823,

DEEMSTER CHRISTIAN TO HIS GRACE THE DUKE OF ATHOL.

"May it please your Grace,

"I desire humbly to acknowledge the receipt of your Grace's communication, of the 17th December, addressed to the Deemsters, wherein you are pleased to notice that our written opinions on the questions proposed to us do not coincide, and to request that we may meet, or communicate with each other, on the subject, and return our joint opinion to your Grace.

" I am at all times happy to benefit from the experience of my brother Deemster ; but, speaking solely from myself, I beg leave to observe, that, at the November Chancery Court, we stated the differing views which we respectively took as to the right of Insular commissioners to administer affidavits in England, and, having again given our solemn and deliberate opinions in writing, it would be hopeless, and almost disrespectful from one to the other (so indeed it appears to me, my Lord Duke), to expect that any approximation of judgment could be brought about by a meeting between us ; and having communicated your Grace's letter to Deemster Heytwood, he has signified to me, in reply, that he desires to abide by the written opinion which he has already given. Indeed, the question proposed being, one of a general nature, the reasoning thereon could not be influenced by any particular circumstances of the case of Ashbridge v. Armstrong, nor a joint conclusion be obtained, save by an absolute change of opinion on the one side or the other. And I would, with great respect, further certify, that, as far as my experience goes, it has not been usual to call for a 'joint opinion,' other than from the law-officers of the crown. Nevertheless, my lord, at the same time that I submit the above to your Grace's superior judgment and decision, I would add, that your letter has caused me to re-consider my former opinion with the utmost attention, and with every disposition to admit and correct any error that I might be able to discover therein ; and, from the review, I am still more confirmed in the justice of the arguments which I had the honour of laying before your Grace in my former written opinion. I find it laid down, in every book of authority, as an undoubted principle of law, that no one can administer an affi- davit, in a civil or criminal matter, without having the legislative sanction of the country wherein he resides, save and except what is sanctioned by the law of nations; and Lord Coke, in his Institutes, says-'That no old oath can be altered, or new raised, without an Act of Parliament, or an oath administered by any that have not allowance by the Common Law, or by an Act of Parliament.' That in the 43rd of Eliz. cap. xii., it was resolved in Parliament, that the 'commissioners concerning policies of insurance could not examine upon oath, because they had no warrant either by Common Law or any Act of Parliament ; and, therefore, commissioners that sit by force of any commission that is not so allowed, are guilty of a high contempt, and, for the same, are to be fined and imprisoned-for commissions are legal, and are like the King's writs, and none are lawful but such as are allowed at Common Law, or warranted by some Act of Parliament; and, therefore, commissions of new inquiries, or of novel invention, are against law, and ought not to be in execution.'

" I would ask, were perjury committed, whether Ashbridge could be indicted for the same either here or in England ? Certainly not here, from the affidavits not having been made within the Isle of Mann; nor in England, as not taken by a person recognised by the laws, and empowered by a competent authority in that country ; and if in neither, then the affidavit must be wholly inoperative and void. Had the Irish Parliament conceived itself authorised to legalise commissioners into England, it is fair to infer, from the great commercial intercourse between the two kingdoms, that a law to that effect would be found in the Statute Book; but the enlarging words of the 55th Geo. III. prove, that no such law ever passed, or that it was grounded on erroneous principles, and there-fore void and of no effect.

"In conclusion, I desire to express, most strongly, my wish that this important question maybe brought to an early and satisfactory. decision, and I respectfully submit the above arguments to your Grace's consideration.

".JOHN CHRISTIAN,

" Fort Anne, 23rd Dec., 1823." "Deemster."


LIB. SCAC., 27th Dec., 1829.

THE DEEMSTERS' OPINION, AS TO SERVANTS' WAGES, TO HIS, GRACE THE DUKE OF ATHOL.

Upon the query referred to us by your Grace, dated, Castle Mona, 20th December, 1828, whether "a servant's claim for wages ranks equal to or after a landlord's claim for rent, or how other wise," we are of opinion that a servant's claim for wages ranks next after a landlord's right for one year's rent. In returning our answer to your Grace, we beg leave to suggest, that, in future, when our written opinions are called for upon points of law arising in courts to which we have no access, the parties, or their advocates, should, at the same time, be directed to appear before us in court, in order to state the particular case, and argue the matter so referred to, agreeably to the practice in England, and elsewhere, which would, in most cases, lead to a concurrence of opinion.

" We have the honour to be, " My Lord Duke,

"Your Grace's most obedient Servants, "JOHN CHRISTIAN, "J. J. HEYWOOD." "Douglas, 27th Dec., 1828."


LIB. SCAC., 8th Jan., 1824.

" It is hereby ordered and directed that every gaoler, keeper of a prison, or other place of confinement in this Island, shall here-after, upon the death of any prisoner therein, forthwith give notice to the Coroner of the sheading in which such prison, or place of confinement is situate. And the said Coroner, after such notice, is hereby ordered and directed, in due course of law, to cause an inquest upon the body of the deceased to be duly taken, which said inquest, when so taken, shall be returned to and lodged in the office of the Clerk of the Rolls

ATHOL.


LIB. SCAC., 5th July, 1824.

RULE OF COURT.

Resolved; "that in all cases at Common Law, where the parties do not agree, that a copy of the Deemster's minutes, signed. and certified by him, shall be transmitted to the Rolls' Office, and recorded with the proceedings ; that the depositions of the witnesses shall be taken down by a clerk from the Rolls' Office, under the direction of the Court, and that the fees arising thereon shall be brought to the account of the fees of the said office, and accounted for accordingly."

C. SMELT, Lieut.-Governor. JOHN CHRISTIAN, J. J. HEYWOOD,

J. Mc. HUTCHIN, J. QUIRK,

GEO. QUIRK.


26th April, 1824.

CHRISTIAN, D.

JOHN COTTIER, by his Guardians, v. THOMAS QUAY.

QUIRK, jun., for Pltff; LLEWELLYN for Deft.

The petition stated a party in interest to be dead, who it could be proved was then living.

The objection was taken by LLEWELLYN for the deft., and held to be good by the Court, as the fact was not denied by the pltff. The petition was in consequence dismissed with costs.


26th April, 1824.

CHRISTIAN, D.

FARGHER v. McGRAVEY.

JOHN KELLY for Pltff. ; LLEWELLYN for Deft.

The pltff. presented a petition, praying that the deft. might be fined and imprisoned for an assault alleged to have been committed by him on the pltff.

The puff. produced two witnesses who swore that pltff. entered a room where they were sitting, and that he left it very shortly after quite well. That, in a few minutes, pltff. returned much cut and bruised, and complained to them that Mc. Gravey, the deft., had assaulted him; no person being present during the actual time of the assault, the pltffs. advocate moved to have the pltff. himself examined upon oath.

LLEWELLYN, for deft., objected to this course, and contended that it would be a dangerous practice to imprison a party, on the oath of another aggrieved by him, without some further proof in corroboration of his evidence. The pltff's. oath to an assault, not otherwise proved, could only be taken for the purpose of binding the deft. to keep the peace.

Deemster CHRISTIAN-Most crimes of this nature are committed when no witnesses are present. If the injured party's oath were not taken many offenders would escape punishment. I shall therefore take the oath, and, if the assault is sworn to, shall, upon that evidence, fine and confine the deft. for a breach of the public peace, but shall give no costs.

The pltff. having sworn to the assault,

The Deemster ordered the deft. to be fined and imprisoned, and to give security in 50 to keep the peace.


26th April, 1824.

CHRISTIAN, D.

MAY v, GRANDIN.

HENRY CORLETT for Pltff. ; JOHN STEPHEN for Deft.

The pltff. in this cause stated, and proved, that he had sent a certain piece of silk to be dyed, and had received from the dyer a wooden ticket, a duplicate of which the deft. attached to the piece of silk. The pltff. lost this ticket. The deft. refused to give up the silk without it, and the pltf thereupon brought this suit to obtain the Deemster's order for the delivery of the silk.

STEPHEN, for deft., stated, that, from the peculiarity of deft's. trade, he was obliged to adopt this plan to distinguish the different little pieces he had to dye. That he always delivered the goods to those who brought the duplicate of the ticket attached to the goods, and any person finding such ticket could come to his shop and get the goods.

CORLETT, for pltff, contended, that although it might be a prudent measure to have such tickets, yet no customer was bound to submit to the penalty of losing his goods, simply because he had mislaid the ticket, which he had taken for the dyer's accommodation.

Judgment for pltfff-Goods ordered to be given up forthwith.


24th May, 1824. CHRISTIAN, D.

CRELLIN v. WM. and ROBT. QUIRK.

KINLEY for Pltff.; QUIRK, jun. for Deft.

The pltff. prayed to have the verdict of a Trespass Jury received. The defts. had refused to give their oaths before the ,fury, and, therefore, in terms of the statute of 1753, Mills, 314, the jury had given their verdict against them.

QUIRK, jun. moved for time to enable the defts. to examine witnesses before the jury. It was a maxim in law that no man was bound to give evidence. against himself, and upon this ground the defts. had refused to be sworn.

KINLEY, for the Pltff-The maxim may be good enough generally, but, in this particular case, the law of the land is against it. The defts. could not possibly want witnesses to swear to their innocence when they might have cleared themselves by swearing to it.

Per Curiam.-I think the defts. have a right to time to examine their witnesses; but let the jury fix the time of meeting.

At a Court held 1st June, 1824. The jury, having heard what the defts. had to say, did not see fit to alter their verdict, and, having noticed the defts. to attend this day, they now appeared to have their verdict received.

QUIRK, for the defts., objected, that they were not legally before the court, no summons having been made. He further submitted that the award itself was erroneous ; the jury found by their verdict "that the defts. had taken away a certain piece of timber off the premises of the pltff" By this verdict they virtually charged the defts. with petty larceny, which a jury of four, men had no cognizance of; it required a jury of six.

KINLEY supported the verdict. Due notice had been given to the defts., by the foreman of the jury, that the verdict would be returned this day, which was the usual practice. The jury had not exceeded their authority in the award they had made, and their return ought to be received.

Per Curiam.-Hand in the papers. The notice is sufficient; but I will consider the point as to the number of the jury, and the nature of the complaint.

June 7.

Per Curiam.--Upon reading the verdict, I perceive the jury have not obeyed the warrant, which directs them to view and estimate, and make a return of, the damage done. They have not made any estimate, and therefore I cannot receive the verdict, because it is not, in point of fact, a verdict in the premises.


29th July, 1824.

RULE OF COURT.

' At a Consistorial Court, holden at Ramsey, the 29th July, 1824. It having been this day made to appear to the Court that ---Thomas, lately deceased, was indebted to sundry persons to a larger amount than his entire property could pay, and that on his death-bed he had made a will in favour of his wife, by means of which the Sumner was prevented from securing his effects, and the goods and stock were made away with and sent to England, to the great injury of the creditors. Now, in order to prevent such injury in future, the Sumner-General is directed to instruct the Sumners under him, that no will, or pretended will, should be sufficient to remove the Sumner's hands when it is known that there are debts due by the testator, or where any creditor interested shall call for the interference of the Sumner ; but that the Sumner will be held answerable for property in such cases, until probate or administration be granted according to the law, and, in the meantime, shall either take possession of the property, or get security for its not being made away with; and any person may, in such cases, apply to a Vicar-General in a summary way for any necessary variation from this rule

.G., SODOR and MANN, THOMAS CUSEON, WILLIAM ROPER.

Exd. by JOSEPH BROWN, E.R.


 

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