[from Advocate's Notebook, 1847]
4th Sept., 1824.
JOHN STEPHEN for Pltff ; ROPER for Deft.
In 1817, Kermotte Stowell sued Mary Stowell, the present pltff at Common Law, and suffered a nonsuit. The costs had never been recovered from that time to this, and the present suit was brought for the purpose of obtaining execution for the amount. The deft. pleaded the Statute of Limitations.
To which the pltffl: replied, that a nonsuit was a matter of record, and a specialty, and that the statute did not apply.
Plea over-ruled, and execution granted for the costs.
13th Sept., 1824. CHRISTIAN, D.
GENESTE for Pltff. ; ROPER for Deft.
In this matter the pltff's. petition contained a clerical error.
It stated that a certain transaction took place " fourteen years ago," instead of "fourteen months ago." The Deemster permitted the error to be amended in court, and heard the petition, which was brought to compel the defts., as owners of lands adjoining those of the pltff, to re-open a certain ancient water-course which they had stopped up, and diverted the stream into another channel.
ROPER, for deft., contended that they ought to have been con-sulted out of court before the suit was brought. They knew nothing of pltff's. wish until now.
GENESTE, for pltff, said, he had consulted with the mortgagee in possession, who, it was notorious, had a greater interest in the estate than the proprietors themselves.
Deemster CHRISTIAN. If the pltff considered it advisable to make the present clefts. parties to his suit, (upon which I am not called upon to give any opinion), then it is quite clear he ought to have applied to them out of court before bringing them into suit. Order refused.
4th Oct., 1824. CHRISTIAN, D.
ROPER for Pltff. ; QUIRK, jun. for Deft.
Objection taken by Quirk, jun. that whatever interest the female pltff might have, the deft., Daniel Kelly, her husband, was dead and buried before the suit was brought.
This fact being admitted,
Deemster CHRISTIAN held the objection fatal, and dismissed pltffIs. petition with costs.
LIB. CAN., 7th Oct., 1824.
ROPER for Pltff:; LLEWELLYN for Deft.
Objected, by deft., that he had not been legally summoned. Pltff produced the certificate of the Coroner, stating, that he had charged John Lace, and left charge for Daniel Lace.
This was deemed a sufficient summons, and Daniel Lace "for not appearing was presented."
LIB. PLI., 12th Oct.. 1824.
This was an action, at Common Law, brought by the pltff. to recover from the deft. a compensation in money for certain buildings erected by him on the property of the deft., under the following circumstances :-
A short time previous to the expiration of a lease (by which Caine, the pltff, held certain lands that had, by purchase, become Dunlop's since the commencement of pltffs. lease.) The deft. Dunlop had promised to have certain buildings (which pltff had erected on the lands) viewed and valued, and that he would make pltff a compensation for the same.
The pltff. clearly proved this point, but no valuation had been made, nor any remuneration received by the pltff. ; but the pltffs. brother, who was a joint party to the lease, had had certain deductions made from his half of the rent on account of the said building. The jury having viewed the premises, the pltff: sought an adequate compensation for his loss, the lease having expired, and the land being now in possession of deft., who refused to make any allowance.
GENESTE, for deft., declined calling any evidence, the point of law being too clear to admit a moment's doubt: he should only cite a case from 3 vol. East's Reports, Elwes v. Maw, a tenant. In which case it was clearly decided, " that any person erecting buildings on land which he rented, and fastening them to the freehold, could not destroy or take them away at the expiration of his lease, &c." This was the law of England, and, upon reference to Deemster Parr's abstract, it would be found to be the law of the Island also.
Deemster CHRISTIAN charged the jury, that the law of the case was quite clear. Any persons erecting buildings on another man's land, must leave them there if fastened to the freehold; and any private verbal promise, which the deft. might have made to the pltff:, could not be brought forward in opposition to the established law of the case, which was too plain to require any thing more to be said on it.
Notwithstanding, the jury returned a verdict for the pltff., damages £10, which the deft. traversed to the House of Keys.
13th Oct., 1824.
A Trespass Jury having been sworn to inquire into a trespass committed by dogs worrying sheep on a common, they delivered in their verdict, and demanded wages, at the rate of half-a-crown a day, for six days which they had attended in the execution of their duty.
The Court asking advice as to the particular practice on this point-
Mr. LLEWELLYN stated that the jury were compelled to attend two days for nothing-one day to go on the premises, and another day to deliver in their verdict; but that if they were occupied beyond that time, it was customary to make them some allowance.
This being concurred in by other advocates,
The Court awarded the jury eighteenpence each for each of the four extra days, to be paid by the party convening the jury in the first instance; to be recovered from the deft. if verdict found against him.
HOUSE of KEYS, 17th Nov., 1824.
J. KELLY and KINLEY for Respndt.; GENESTE for Applnt.
KELLY, for respndt., opposed the reading of certain depositions, on the ground of their not having been read to the jury in the court below.
GENESTE, for applnt., admitted they were not actually read to the jury, because the Deemster prevented them, which he contended the Deemster ought not to have done. They were depositions which had been taken by commission under a former action between the same parties, touching the same matters and things ; and if the Deemster had improperly prevented them being read in the court below, yet, as they were actually produced there, this House had also a right to decide whether it would receive or reject them.
KELLY, in reply-The pltffs. in the court below are Scotsmen, residing in Scotland, and the law of that country makes the next youngest brother (in certain defaults) heir to the deceased. Accordingly the youngest brother filed his declaration in this Island, seeking to recover the property; and depositions by commission, were taken in Scotland, where the witnesses (under the impression of the Scotch law) swore that he was heir to the deceased. But, when the advocates here discovered the mistake, they stated, that though the claimants were Scots, yet, as the property was Manx, they could only obtain possession of it through these courts under the Manx law, which made the elder, and not the younger, brother heir to the deceased. Afresh declaration was therefore filed by the elder brother,, and when the cause was tried before the Deemster, he, very properly (as the first action had. been given up), refused to let the depositions be read which had been taken under it. In fact, the suit was not between the same parties; the jury, therefore, not having heard them, the House could not take cognizance of them, otherwise it would be reviewing the judgment of the court below, upon evidence of which they had no knowledge.
The House decided that the depositions objected to could not be read.
The only question in this case was whether lands purchased after the execution of a will, could pass by a general devise of lands in that will. The words in the will were -- " I leave and bequeath all the rest, residue, and remainder of my property, in houses, lands, goods, chattels, and effects, of what kind or nature soever, within this Isle, or elsewhere, unto my beloved wife ; whom I appoint executrix of this my will."
Robert Ronald, the testator, made his aforesaid will in the year 1800. In 1804, he purchased the property in dispute, and in 1807 he died, without having republished his former will, or adding any codicil to it affecting the land last purchased. His widow administered to the will, and remained in possession of the land last purchased, one half in her own right, and of the other under the devise from her husband. Subsequently she sold the whole to Scott. Robert Ronald, the testator, having died without issue, his eldest brother, John Ronald, the present pltf , as his heir-at-law, commenced an action against Scott for the recovery of a moiety of the said lands, and obtained a verdict in his favour in the Court of Common Law, and from this verdict the present appeal was made.
GENESTE, for the applnt contended that the manifest intention of the deceased was to leave the whole of his property to his wife, and the doctrine the respndt, seemed anxious to establish was, that in a case when our Insular law was silent, we ought to have recourse to English Statute Law, for all the cases quoted by his counsel were decisions under English Statute Law. By our statute of 1777, it was clear that purchased lands could be devised by will, and no restriction being mentioned in the act, it would be great in-justice to have recourse to English Statute Law for doctrines of law whereby to shackle what our own had left free.
J. KELLY, for respndt contended that if the devisor intended to have left to his widow the lands purchased after he had made his will, he ought to have republished it, or to have added a codicil to that effect. Having failed to do either, the law gives the husband's half to the heir, and the widow could only sell the moiety which of right belonged to her. In 2 B. C. 378-4 Burns, E. L. 67, and 1 P. W. 875, the point was clearly decided, viz : that a man may by a will, devise his chattels and personal estate, that he shall acquire in future, because, being fluctuating property, if it were not so allowed, a man must make a new will every day. But it is not so with lands, for they are fixed and permanent ; therefore, " if a man maketh his will, and deviseth therein all the lands which he shall have at the time of his death, and, after that, he purchaeth land, and dieth without republication, or making a new will, in this case, though his intent to the contrary be very apparent, yet it is a void demise, for a man cannot devise any lands but what he hath at the time. of making his will." And this adjudged upon great deliberation by Holt, C. J., in the case of Banker v. Cooke, and the judgment was affirmed afterwards, upon a writ of error, in the House of Lords, 24th Feb. 1707.
The House affirmed the decision of the Court of Common Law.
HOUSE OF KEYs, 19th Nov., 1824.
GENESTE for Apptnt; QUIRK, jun., end ROPER for Respndt.
The respndt. in this case was the lessee of certain premises from one Christian, who had covenanted in the lease to build a barn for Caine within one year from the date of the lease. Caine's brother John was a partner with him in the lease. Christian failed to build the barn, and as John Caine and William Caine did not live in the said house, the respndt's. brother John obtained a deduction from his rent, but the respndt. William always paid his full half of the rent, and, at last, built certain offices for himself, viz., a barn, stable, cow-house, and dwelling-house, which were the premises stipulated about. The estate getting more and more involved, was finally sold to Dunlop, the applnt., who made an agreement with the respndt. to pay him a certain sum, to be fixed by two arbitra-tors, for the buildings on the estate which were erected by Caine. Caine's arbitrator attended on the premises to value them, but Dunlop did not.
Subsequently Dunlop obtained possession of the premises, but Caine never received the promised compensation, and had, therefore, brought an action at Common Law, and obtained a verdict of £10, from which Dunlop traversed.
GENESTE, for the applnt., stated that the House had but one simple question to try, viz : whether a tenant, under a lease, could, or could not, remove any buildings which he might have erected upon the lands be held. He contended that though buildings erected for the purposes of trade ought to be removed, yet if erected for agricultural purposes, they could not. Elwes v. Maw, 3 vol., East's Reports, was a strong case in point. It was relied on by the respndt. that applnt. had made a promise. He did not admit it; but if he had, it was under ignorance of the laws, not knowing that he was promising to pay for that which was his own by right. Suppose a man had stolen one of the applnts. sheep, and afterwards brought him the carcase and sold it to the applnt., who promised to pay for it at a future day ; but afterwards, finding the sheep to be his own, subsequently refused to fulfil his promise,-in such a case the seller could not maintain a suit against him for the price; and so in the present case. If the applnt. had promised to pay he had never discovered the property to be his own, and, therefore, the respndt was not entitled to one farthing damages.
ROPER, for the respndt., admitted the correctness of the authority quoted by Geneste, but said there was a peculiar feature in this case which took it out of the general rule. A verbal promise could not be looked upon as a mere nudum pactum, if a consideration for it could be shewn. It was in this case shewn that applnt. obtained possession of the premises before the expiration of the respndt's. lease. It is also sworn that applnt. had agreed to pay such a compensation for the building as arbitrators should fix. ; and, if, on the strength of this promise, Dunlop had obtained possession a single hour before he had a right to it, it constituted a consideration, and the respndt. was clearly entitled to a verdict. The only thing the House would have to consider would be the quantum of damages. It was in evidence the buildings were worth £60, and the verdict of the jury, who tried the case in the court below, was entitled to additional consideration, as they had seen the premises.
GENESTE, contra, stated that the ground on which the respndt. now claimed damages was not urged in the court below, or he could have disproved it; no such argument was then thought of. The declaration stated `° That the deft. was in possession on the 12th, which was a tacit admission of his not having been so before, and, therefore, the respndt's. own declaration was a sufficient answer to his plea. Besides, respndt's. brother had received his compensation, as it was proved, and as twenty-six years had elapsed since Christian, the original lessor, broke his bargain, it was fairly presumed that the respndt. had also been paid. The case, therefore, came back to the mere point of law.
The House affirmed the verdict of the court below.
DEEMSTER'S COURT, Nov., 29th, 1824.
Quirk, jun., for Pltff.; KINLEY for Deft.
The pltff: had been hired for a year by the deft. at the wages of £4 9s. per year, part of which had been paid, but a balance was claimed to be still due, under the following circumstances. .
Before the year was half expired, the deft. being angry with the pltf had called him a "scoundrel and a villian," and desired him never to show his face to his house again" which he further strengthened by saying to the pltff. "and mind I tell you so." The pltff , therefore, left his service, and, the year being expired,: brought his suit to recover the balance of the whole year's wages. Deft. admitted he had engaged the pltf, for a year, and for misconduct he had turned him off at the expiration of half-a-year, but proved that he had sent to him a day or two afterwards to return, to his work, which pltff: refused to do, and said "If his master forced him back, he would do no work for him." It was also proved that the pltff had been employed at "the fishing" ever since.
The Court refused to grant execution. It was clear the pltff. had sustained no loss; for, in fact, he had been employed elsewhere. He ought to have returned to his service, and the opportunity was fairly offered to him, if he had been so disposed. A servant was not justified in leaving his master's service for every hasty word, as the law would protect him from injustice or ill-usage, when in his master's employ.
29th Nov., 1824. CHRISTIAN, D.
JOHN KELLY for Pltff. HARRISON for Deft.
This was a suit to obtain the Deemster's order for the deft. to give up a copy of a settlement, in her possession, affecting the pltff's. interest, and which the deft. had refused to give.
Deft. pleaded that she had no copy to give, and that the pltff. had brought her unnecessarily into court, as the deed had been recorded so far back as the year 1813, and, of course, if pltff had applied at the proper office, he would have got a copy on paying for it.
Dismissed with costs.
LIB. CAN., Dec., 1824.
WM. STEPHEN for Pltff.; LLEWELLYN for Deft.
Two of the defts. in this cause were charged by the Coroner on Monday, for the Thursday following; but the Coroner, not having the petition with him at the time, went a second time on the Tuesday, and charged them over again.
LLEWELLYN, for defts., objected, that the first alleged summons was no legal charging at all, for want of the authority to snake it; and the second not according to the time required by law, which was three days before the court.
The Court held the objection good, and the cause was not allowed to come on.
18th Dec., 1824.
ROPER for Pltff.; LLEWELLYN for Deft.
This was a suit, by petition, to have certain lands in Kirk German, in the possession of defts., divided between the pltff and the defts. according to their respective rights.
LLEWELLYN objected, that the proper parties were not before the court. Elinor Hinton was made a party to the suit only as guardian of the minor ; but she had interests of her own in the estate, totally different from those of her son and ward. The petition only recognised her as guardian, and in that capacity alone she was summoned and appeared before the court; nevertheless, the petition prayed to have the whole estate divided between the parties to the suit, as if the widow had no interest in the lands, although, in point of fact, she was in the actual possession of the entire estate. If the court was to make a judgment, as prayed for in the petition, it would be, in fact, depriving the widow of her widow-right; and, therefore, he submitted the suit could not proceed, to enable the court to make any decision in the case, until the widow was made a party, in proper form, and brought before the court for its judgment.
ROPER, for petitioner.-The objection is frivolous and vexatious. Elinor Hinton is sufficiently before the court; she was duly summoned by the Coroner; she read the whole of the petition, and the officer has returned a certificate of her having been legally charged. It is absurd to suppose that the Coroner was to charge her, and read the petition to her as the guardian of the minor in the first instance ; then to turn round and go through the same form again to charge her in her own person and interest, and afterwards to grant two certificates for charging the same person twice over in the same suit.
LLEWELLYN.-I appear for the minor only. I am instructed by the deft. Elinor to protect his interest; but she has interests of her own in opposition to her son's. Who appears for the protection of her rights ? It is plain she has an interest ; and, if so, she must be made a party, in apt words to charge her as such.
Per Curiam.-It is admitted that Elinor Hinton has rights of her own, distinct from those of her son, which would be affected by this suit. The question is-is she so before the court that I can make a judgment binding upon her. She is clearly made a party as guardian of the minor, but that is only for the minor's interest; if the minor had had any other guardian, the widow must have been made a party on her Pwn account. Is her individual right to be disregarded, because she is sworn to protect her son? Certainly not. The petition is therefore informal, and must be amended by making the widow a party, and praying relief against her as such, as well as in her capacity of guardian.
Continued to amend the petition.
7th Feb., 1825.
GENESTE for Pltff. ; J. C. GELLING for Deft.
J. C. GELLING appeared for deft., and pleaded that no summons had been made; calling upon pltff to produce a certificate of service.
GENESTE, for pltff, stated that the Coroner had not given a certificate, because, when he charged the deft., and skewed him the warrant, he told the Coroner that he was not the party. It turned out, that he was, in fact, the real deft., and the Coroner having shewn the warrant to him, and charged him to court at the time, it must be considered a legal summons to all intents and purposes, notwithstanding his denial.
The Coroner having confirmed this statement,
Deemster CHRISTIAN decided, that the deft. was legally summoned.
5th May, 1825.
ROPER for Pltff. ; GENESTE for Deft. .
The complnt. had filed her bill in Chancery, 23rd Nov., 1824. An application for injunction had been heard, and an injunction refused, on the 17th Dec., 1824, and the complnt. now presented her petition to the Governor, praying to be allowed to amend her bill, without prejudice to the proceedings already had thereunder, by striking out the words, "and the complnt., upon giving ample and sufficient security for the payment of the said annuity of £40 per annum to the said Henry Allen, may be left in the quiet and peaceable possession of the said estates ;" and by inserting, in the place of the said words, so to be struck out as aforesaid, the words following-" And from recovering the rents from the tenants during so long a time as the complnt. shall regularly pay the said annuity of £40 per annum to Henry Allen, as it accrues due."
Upon a hearing, the Court allowed the complnt. to amend her bill, as prayed for, on payment of costs to be taxed.
NOTE.-It does not appear, by the record, that the complnt. did, in fact, avail herself of the permission to amend.-Ex
7th March, 1826. HEYWOOD,
J. C. BLUETT for Pltff.; T. A. CORLETT for Deft.
BLUETT, for Pltff, read a petition, stating certain defamatory words, alledged to have been made use of by the deft., of and concerning the petitioner, and then handed in the petition for "a reference to law."
CORLETT, for deft., contended, that the pltff. ought to examine witnesses to prove his complaint, and skew that he had grounds to go to law, otherwise he would not be entitled to a reference.
BLUETT. It is not necessary to examine witnesses; the petition is framed in pursuance of the Statute of 1738, and all that the statute requires is "that a declaration of the slanderous words complained of shall be made before a proper judge or magistrate within fifteen days after speaking the same, in order to a prosecution, otherwise such complaints of slander not to proceed at any time afterwards." This act is merely to prevent stale complaints, and does not give the judge or magistrate any power either to grant or refuse a refer-ence to law. The prayer of-the petition is, that it may be considered a timely laying of the complaint according to law, and merely handing in such a petition to the Deemster for his signature is a sufficient compliance with the terms of the statute.
Deemster HEYWOOD.-I do not conceive it necessary to examine witnesses under this petition; indeed, I think it would be improper to do so. Matters of this nature are generally distress ing to the feelings of parties, and examining witnesses now would only increase the evil and spread the calumny. The law does not require it, and I shall never allow it. Take a reference to Common Law in the usual form.
LIB. PLI., 8th Oct., 1827.
GENESTE, for Deft.
The Great Inquest sought to present the deft. for not having his mountain fences in repair.
Upon the presentment being read over by the Deemster, GENESTE appeared for deft., and objected to any presentment being made by the Great Inquest, as only eleven members were in court.
The foreman of the inquest stated that the other inquest-man was in England.
Deemster HEYWOOD.---You should have come to me out of court, and I would have sworn in another member; I cannot receive a presentment from eleven men, the whole twelve must be present.
Nov. 24th, 1828. HEYWOOD, D.
GENESTE and ROPER for WM. LLEWELLYN and BLUETT for Deft. Suit brought to have deft. ordered to repay some pinfold fees, alleged to have been received by him, unlawfully, for cattle impounded by his orders off deft's. lands, the boundary fence being out of repair.
Deft's. advocate did not deny the fact of the boundary fence being out of repair, but relied on the act of 1705, Mills, 178, which allowed impounding, whether the fence "be statutable or not." Deemster HEYWOOD cited the act of 1776, which, he stated, virtually repealed the other, and, therefore, ordered the deft. to return the fees, with costs.
24th Nov., 1828. HEYWOOD, D.
Petitioner, being pltfl: in the cause on a former day, failed in proving his case, and the suit was dismissed.
Upon a petition for a rehearing; the petitioner made a better case, and the Deemster reversed his former judgment; whereupon, the petitioner moved for the costs of the rehearing.
Deemster HEYWOOD.--It is contrary to the practice of the court to allow the costs of a rehearing; you might have established your case as well the first day as now, and it is your own fault for not doing so. Judgment varied in favour of pltf, but without costs.
2nd Dec., 1828. CHRISTIAN, D.
KINLEY for Plff; ROPER and DUMBELL for Defts:
Suit brought to recover £7 from defts. (his next of kin) for maintenance of a pauper. Pltff had obtained a similar order in the Ecclesiastical Court last year.
Deft's. advocates contended, that the suit was improperly brought, being cognizable in the Ecclesiastical Court only. Deemster CHRISTIAN held the objection valid, and dismissed the suit with costs.
22nd Dec., 1828. HEYWOOD, D.
C. STEPHEN for Pltffs.; .1. C. BLUETT for Deft.
Deft. had stood in contempt on a former day, and was now brought up by a constable. Pltff had taken an order of possession, in August last, of certain lands on which he held a mortgage. The deft., under an execution, had sold the stock and crop of the tenant on the said lands; and an arrest having been laid on the deft. for all the money in his hands, the property of the said tenant, the suit was brought to obtain from deft., on oath, an account of what money he so had in his possession at the time of his arrest, and an execution for the amount.
BLUETT, for deft., proved that the execution against the said -- tenant, and the appraisement and sale of his goods, were all prior in date to the order of possession, and that, therefore, the moment goods to the amount of the execution and expenses were sold, the judgment was discharged, the proceeds of the sale becoming the property of the pltff in the execution, and not liable to discharge a subsequent arrest laid on the Coroner by the order of posses-sion.
Deemster HEYWOOD held with the deft., and dismissed the suit on the merits, but pltff. moved to be allowed the full costs of deft's. contempt, viz : 18s. 3d.
BLUETT, for deft., contended, that this was all pltff. could have got had he gained his cause, whereas, it was now clear if deft. had met the suit the first day it must have been dismissed as now, and that, therefore, 7s. 1d. ought to be deducted, and only such ex-penses allowed as pltff had actually been put to by deft's contempt. Per Cur am.-Certainly, no more; take execution for 1 Is. costs of contempt.
15th June, 1820.
J. C. STEPHEN for Pltff. ; F. J. D. LAMOTHE for Deft.
Pltff held -an execution in favour of John Kermode v. John Crow, and arrested, thereunder, money in the hands of the deft., which he owed to Crow; and deft. was now brought into court, in the usual way, to give his oath to the amount he was indebted to Crow, that the pltff might obtain an execution against him.
LAMOTHE, for Crow, stated that, before the execution had been placed in the pltff's. hands, the pltff. Kermode had received a part of it, on account, from Crow ; and that, therefore, the execution was broken, and that Kermode must get a new execution for the balance.
Deemster HEYWOOD.-That would not break the execution. Such practice applies only where the party pltff., having placed an execution in the Coroner's hands, receives money himself from the deft. ; this would discharge the Coroner from liability, but would have no further effect. In this ease the execution may be enforced for the balance. The arrest is good, and the deft. must be sworn in the usual way.
15th June, 1829. HEYWOOD, D.
QUIRK, jun., for Pltff. ; STEPHEN and DUMBELL for Deft.
Pltff. is eldest son and heir-at-law of - Corrin, deceased. The deft. is his widow, by a second marriage. The deft. is entitled to one quarter of the deceadant's purchased lands, and pltff: some time since obtained an order from the Deemster for the Setting-Quest of Lonan to divide the lands between the parties, according to their respective rights. The pltff., being in possession of part of the premises previous to his father's death, persuaded the Setting-Quest that the widow was not entitled to any part thereof. Before the Setting-Quest acted on the order one of them died, and another was indisposed; but the other two, along with the Coroner and Moar, then proceeded, and divided those premises only that were in the actual possession of old Corrin at the time of his death.
The widow being dissatisfied with the division, presented a petition to the Deemster, who ordered a new Setting-Quest-man to be sworn in place of the deceased, and also ordered them to divide the whole of the premises.
The Setting-Quest were summoned by the pltff. to give in their return this day, but the deft. objected to the return, on the ground that they had not made a fair division, they having acted on the division made before, as complained of, and also, that they had not, according to the usual custom, drawn lots to ascertain the parties' share after the lands were divided, but had appointed a particular share to her, with which she was dissatisfied.
Deemster HEYWOOD ordered the Setting-Quest to appear again on the premises, to divide the same in four parts, and afterwards to cast lots to see which fourth part the widow was to have.
25th March, 1830.
F. L. GELLING for Pltff; C. GENESTE for Deft.
A will was put in and proved by the deft. at the Chapter Court, in November, 1829. The present suit was brought to have the probate quashed upon an allegation that the next of kin had not been noticed to attend the Chapter Court; and that the will was not duly signed by the deceadant.
GENESTE, for deft., objected to the petition being heard in the Vicar's Court, which, he contended, had no authority to revise the proceedings of the Chapter Court. The reason alleged he also contended was not sufficient. It is not necessary to notice the next of kin to a Chapter Court. It is the business of all next of kin to attend at the next Chapter Court after the decease of their relative. But he still relied upon the point that the proceedings of the Chapter Court could not be revised in the Vicar's Court. Vicar-General PHILPOT.-It must be presumed that the Chapter Court have used all due diligence and caution in receiving the will, and if I had the power in this court of setting aside these proceedings, I should feel great delicacy in using it. Therefore let the matter be brought on specially at the next Chapter Court.
2nd May, 1830. HEYWOOD, D.
H. N. CARRINGTON for Pltff.; ROBERT KELLY for Deft.
This suit was brought to obtain execution for. the amount of a bond and security.
The deft. stated that the pltff. ought to have come to his house to demand the money; instead of which no demand had been made upon him either at home or abroad.
Pltff contended that it had been held in the Deemster's Court, that the summons alone was a sufficient demand. The pltff, however, would consent to take an execution without costs.
Per Curåam.-I am of opinion, that a demand must be made for the amount of a bond before the summons; and I wish it to be distinctly understood as a rule of my court, that, generally, the demand should be made at the residence of the deft. But circumstances may alter the case; for example, if a demand be made in the street, and deft. says, "You must come to my house," then the pltff. must go to the house; but, if the deft. says at once, "I wont pay you, or, I cannot," then, and in similar cases, I should hold the demand sufficient, though not made at the house.
2nd May, 1830. HEYWOOD, D.
H. N. CARRINGTON for Pltff:; WM. KINLEY for Deft.
The pltff. brought this suit to recover the amount of an execution which pltff. had put into the hands of deft., who was Coroner of Glenfaba Sheading, for the purpose of enforcing it against a deft. who lived in Middle Sheading, but who was a near relative of the Coroner of that sheading, and pltff. was apprehensive that the said Coroner of Middle would not proceed with the necessary rigour.
The deft. objected, that, as Coroner of Glanfaba, he was not bound to go out of his sheading to enforce executions in another sheading.
The Court was of opinion that the Coroner of Glanfaba was bound to enforce the execution in this case, but he would have a right to claim from the pltff. a fair compensation for his reasonable expenses in the performance of this duty, which belonged to the office of the Coroner of Glanfaba alone.
10th May, 1830. HEYWOOD, D.
ATTORNEY-GENERAL for Pltffl.; DUMBELL for Deft.
This was a suit brought to recover, from the tenant of a house in Douglas, the usual high-road labour-viz., three days labour. The deft. objected, that the statute did not make the occupiers of houses liable to three days each house. The deft. occupies one of three houses in the said town, all which adjoin, and are built on part of the Nunnery Estate, which pays a large lord's rent; but no separate rent is reserved on each house.
The landlord of the three houses had regularly paid three days labour for them, which the overseer admitted he had received in full for all three.
The ATTORNEY-GENERAL contended that each house, if inhabited, was bound to pay three days.
There were many other cases of the same kind, which, it was agreed upon, should be decided by the judgment in this. Judgment was given for the pltff. NOTE: This case, until appealed from, establishes the point, that every occupied house is liable to three days high-road labour.
31st May, 1830. HEYWOOD, D.
Pltff in Person; G. W. DUMBELL for Deft.
Suit brought to obtain an order of possession of land formerly let by pltff. to deft., the term of whose holding had expired on the 12th instant.
The deft. proved, by two witnesses, that notice to quit had been served, in writing, in the presence of the two witnesses.
The deft. objected that the notice had not been served by the Coroner.
Per Curiam.-The notice is sufficiently proved; being in writing, it is not necessary to be served by the Coroner.
Order of possession granted.
7th June, 1830.
It was stated by his Honour Deemster Heywood, as a rule of court, that, for the future, all matters in dispute, where the defts. live in the parishes of Onchan, Braddan, Marown, and Santon, were to be brought before the court at DOUGLAS; and defts. in Rushen, Arbory, and Malew must be brought to CASTLETOWN.
That, for the future, it was intended that the practice of bringing defts. out of their districts by petition, stating that the witnesses resided in the district where the suit was brought, was to be discontinued, and every deft. was to be sued in his own district.
If a deft. resists a just demand, he will be properly subject to the expenses of bringing the witnesses up to the court to prove the case.
#18th Oct., 1830. HEYWOOD, D.
CLUCAS for Pltff.; DUMBELL for Deft.
The principal question raised in this matter was, whether an execution granted three years previously, and a jury's return obtained in one sheading, could now obtain any preference over executions recently obtained, and placed in the hands of a Coroner of another sheading.
The facts stated were, that the pltff. on the 2nd March, 1826, obtained an execution against J. C. Gelling and others, (who were entitled to the two estates of Slewallyn, in the parish of Patrick, in Glanfaba Sheading, and Hampton, in the parish of Santon, in the Middle Sheading,) for the amount of a bond and security, chargeable on those two estates, and it was distinctly specified in the execution, that it was to be levied out of the estates so given in security. On the 9th March, 1829, pawn was delivered by Mr. Gelling in Garff Sheading, where he then lived, and the said estate of Hampton was sold under the execution, by the Coroner of Middle Sheading, but the proceeds were insufficient to discharge the amount of the execution, and a balance remained due thereon.
In June, 1830, other executions were obtained against Gelling, and placed in the hands of Kinnish, the Coroner of Garff, to be enforced against Gelling's effects in his sheading. Shortly afterwards, Nelson, who had previously withdrawn his execution from the hands of the Coroner of Middle Sheading, placed it in the deft's. hands, and thereunder, jointly with the other executions in his hands, the effects of the deft. Gelling were sold, and the question now was raised by Nelson, the pltff, who brought this suit to compel the deft. to pay him the full amount of his execution, although the effects were insufficient to pay twenty shillings in the pound to the other creditors.
In support of the pltff's. claim, it was argued, that by the Statute of 1820, Mills Laws, 495, it was clear that an execution, once executed, and pawn delivered, was to be paid in preference to any other common execution of fourteen days later date, or which had been ineffectually enforced by not taking pawn in fourteen days from the granting thereof. That by the delivery of "pawn," every saleable article belonging to the deft. was delivered with it to the Coroner in discharge of the execution, and it mattered not in what aheadirg the property might ultimately be found.
Upon the part of the deft., it was contended, that the pltff, was not entitled to any preference. 1st. Because he had withdrawn the execution from the hands of the Coroner of Middle Sheading, im- rnediately after the sale of Hampton, and had ever since kept it himself, until after the other executions had been granted and pawn delivered upon them in Garff Sheading, when he placed his execu-tion, also, in the hands of deft., as Coroner of Garff. It ought, ; therefore, to be looked upon as a new execution, entitled to no preference over the rest.
It was also urged, that the pltff's. execution was expressly to be enforced, and, in point of fact, had been enforced against the lands mentioned in it; and, therefore, it might be doubtful whether it could be enforced at all against other property of the deft. Gelling.
Deemster HEYWOOD decided that the pltff, having withdrawn his execution from the Coroner, was not entitled to any preference over the other executions, and dismissed the cause.
From this judgment, the pltffl: appealed to the Staff of Govern-ment, and the Appellate Court, upon a hearing, 1st Dec., 1831, confirmed the Deemster's judgment.
NOTE.-It does not appear whether the property, subsequently attached, was in the possession of the deft. Gelling at the time the first execution was granted. Query ?-If that had been the case, was the pawn released by withdrawing the execution?
LIB. PLI., 19th Oct., 1830. HEYWOOD, D.
GENESTE and DUMBELL for Pltff.; LLEWELLYN for Deft.
In this case, a jury of View had been sworn in Hilary Term last. In Easter Term the cause was continued, the jury not having yet. viewed the premises. In Trinity Term the suit was again continued on good cause shewn ; and now, in Michaelmas Term, the jury, having viewed the premises, the cause was duly set down for hearing, but when the Jury of View were called, one of the jurors, William Christain, was absent; the pltff, therefore moved. that the absent juror should be fined and the cause continued.
LLEWELLYN, for the deft., objected, that before the jury-man could be fined, the pltff, must skew that he had duly summoned the jury to the court.
Per Curiam.-The jurors having once been sworn are bound to attend the ensuing Court, without further notice; William Christian, therefore, for not appearing, is fined £5. The cause must stand continued until next term, and the jurors will take notice, that they are to appear then without any summons. LLEWELLYN then stated, that he had an objection to offer to the form of the declaration, which he was willing to argue at once, if the pltffs. consented; it would save ultimate expense to the parties, if the objection should be held good.
Upon consent of the pltffs.,
LLEWELLYN Stated, that the suit was instituted to recover from the deft. certain lands and premises, formerly the property of Wm. Cowley, deceased, and it was brought in the names of Catherine Cowley, widow, and John Cowley, heir-at-law of the said Wm. Cowley; and the declaration stated, that the pltffs. were jointly entitled to the estate in question ; whereas, in point of fact, their rights were perfectly distinct and separate, the widow, as widow, being only entitled to a life interest in one-half the premises, and the heir having the fee simple of the one-half, and a reversionary right to the other upon his mother's decease. Upon these grounds, therefore, he contended that they were improperly joined in the same suit, and that for such misjoinder the pltff must be nonsuited.
For the pltffs., it was argued, that nothing appeared on the face of the declaration to justify the objection, and the deft. cannot travel out of the declaration. Pltffs. might have a joint interest.
Deemster HEYWOOD.-True, it might be so ; but if the facts really are as Mr. Llewellyn has stated, then I shall be bound to direct a nonsuit, for, in such a case, I am of opinion the parties cannot join. But if the pltff will not consent to take a nonsuit now, I cannot force him. The jury are sworn, and the pltff. must use his own discretion whether he will submit to a nonsuit or proceed.
The pltff declined suffering a nonsuit, and the cause was therefore adjourned.
NOTE.-This suit was never prosecuted further.
LIB. PLI., 19th Oct., 1880.
GENESTE for Pltff:; LLEWELLYN for Deft.
In this case a commission to examine witnesses abroad had been obtained last court, and was issued in due course, but had not yet been returned.
The pltff had not summoned the deft. to the court for this day, but when the parish was called, in which the venue was laid, the pltff. moved to have the cause entered upon the list and continued.
For the deft., it was objected that no summons having been made upon the deft. the suit must fall to the ground, and the pltff was not entitled to have the cause entered upon the list.
For the pltff it was replied, that the practice was considered settled, that when once a commission was issued by either party, it was not necessary to summon the deft. until its return and publication.
Per Curiam.-Certainly ; the practice is so. The cause must stand continued.