[from Advocate's Notebook, 1847]
LIB. PLI., 9th Nov., 1830.
LLEWELLYN and BLUETT for Pltft.; CORLETT and DUMBELL for Deft. This was an action of trespass for passing over the deft's. close. The deft. set up as a defence that he had a right of way over the locus in quo.
The pltff was about to proceed with his case, when the deft. submitted that as the affirmative of the issue to be tried, viz :-whether the deft. had or had not a right to do what he had admitted he had done, was to be supported by the deft., that therefore he ought to begin and stand, so far, as pltff in the cause.
The Court ruled accordingly, and the deft commenced his case.
15th Nov., 1830. HEYWOOD, D.
DUMBELL for Pltf. . ; GENESTE for Deft.
The deft. was tenant to the pltff, and about to quit the premises. The suit was now brought by petition to have the deft. inhibited from burning the fodder which he was bound, by his lease, to consume on the premises.
The deft. objected, that he had not been summoned in time ; he was only noticed on Saturday, the 13th instant, and he was entitled to three days' notice.
Per Curiam.-In a case of this nature, three days' notice is not necessary, otherwise, the evil would be placed beyond a remedy while the pltff was seeking for it. If an affidavit had been made, I should have granted the application out of court; at least, until a hearing. I shall grant the order prayed for, and inhibit the deft. from putting such a novel and ingenious construction on the word "consume."
COMMON LAW, 8th July, 1830.
BLUETT for Pltff; DUMBELL for Deft.
This was an action of damages for an assault. The deft. pleaded formally, "defence of his possession;" and orally, "that he had been fined and imprisoned, at the suit of the pltff., for the criminal offence, and was, therefore, not liable in an action of damages."
The jury at law dismissed the action,
But, upon appeal, the House of Keys, on the 11th February, _ 1831, reversed the verdict of the jury, and gave £100 damages and the costs of the court below.
30th Nov., 1830.
Deemster CHRISTIAN stated it, as a rule of his court, that, for the future, the Northern District was to be divided. That where the deft. resided in the sheadings of Garff and Ayre, he was to be sued in RAMSEY ; if in Glanfaba Sheading, he might be sued either at PEEL, or at KIRK MICHAEL-at both of which places courts would, in turn, be held.
30th Nov., 1830. CHRISTIAN, D.
T. A. CORLETT for Pliff. ; F. B. CLUCAS for Deft.
In this cause, the deft., with one Charles Moore, had signed a bond in favour of the pltff, and the present suit was brought to recover the amount of it.
Upon the part of the deft., it was objected, that the pltff. had no right to sue the deft. until he had obtained an execution and jury's return against Charles Moore ; the deft. in this suit being merely bail in default of the other; and, in all such cases, the practice is, that the principal must be sued first, and his property first exhausted.
For the pltff, it was answered, that the practice was extremely unsettled. Sometimes the parties were sued separately, and some-times together; and suits, in both ways, had been entertained by the Court, and judgments given.
Per Curiam.-I give no opinion, at present, about the practice, as it is stated, in cases of principal and bail. It is admitted that the deft., in this case, is only bail in default of the principal ; and, as there is nothing before me to shew that the principal has made default, there is no ground for suing the bail, and the suit must be dismissed with costs.
15th Jan., 1831.
Pltff in Person; Deft. in Person.
The petition in this matter stated, that on the 2nd of August, 1828, petitioner filed his bill against deft., to obtain judgment for the amount of a bond chargeable on certain premises which deft. had purchased subject to the bond.
To this bill deft. demurred for want of parties, and the court held the demurrer good. The court, in its minute, stated, "other purchasers ought to be parties." That the bill was subsequently dismissed with costs, and a bill for £9 2s. 3d. had been served upon petitioner.
The petitioner then submitted that a decree for costs had, no doubt, been inadvertently made, and that, as petitioner had merely sued, in his capacity of executor, respecting assets belonging to the estate, he was not liable to costs, and the petitioner prayed that the decree might be rectified, and the petitioner adjudged not liable to costs.
Held.-That under the circumstances of the case, petitioner ought not to pay costs.
21st Jan., 1831. PHILPOT, V. G.
GENESTE for Pltff. ; DUMBELL for Deft.
Suit brought for the amount of a debt which pltff. alleged to be due from the deceased.
The deft. required to see the claim that had been entered at the registry.
The pltff. not having entered his claim, the deft. moved to have the cause dismissed for noncompliance with the form of law, requiring every creditor of a deceadant to enter his claim, in writing, in the Episcopal Registry.
The Court held the objection good, and dismissed the cause with costs.
8th Feb., 1831. PHILPOT, V. G.
J. C. BLUETT for Pltff.; C. GENESTE for Deft.
Suit brought to recover the amount of a legacy bequeathed by 'the will of - Oates, deceased, but appointed to be paid out of certain lands bequeathed to the deft., who was also executor of the will.
It was objected by the deft., that legacies, chargeable on lands, could only be sued for in the Chancery Court, because the Eccle-siastical Courts had no authority to order the sale or incumbrance of lands. Pltff contended that the legatee must establish his claim to the legacy in the Ecclesiastical Court in the first instance, this court being merely called upon to grant an order for the money against the executor, and the pltff might then go to the Chancery Court to get a decree against the lands, if the executor refused to pay with-out, and the order of this court would there be evidence of the claim.
For deft., it was replied, that the will was the evidence of the claim, and there was, therefore, no necessity for establishing the claim in this court, or producing anything but the will in the Chancery Court. The executor had only power over the personal effects; the legacy was not payable out of the personal estate, and, therefore, no order could be granted against the executor.
The Court was against the pltfl:, and referred him to a Court of Equity for redress.
29th April, 1831. PHILPOT, V. G
GENESTE for Pltff. ; DUMBELL for Deft.
Suit to recover the amount of a debt due by the deceased. Deft. called for the claim.
Pltf stated that the claim was really entered, but that he had by accident left it at home.
Deft. moved to have the cause dismissed, and cited the case of Bridson v. Administrator of Crye.
Per Curiam.-In that case the claim had not been entered at all, here the claim is stated to have been entered, but by accident not in court. Let the matter be continued to produce the claim next court. If it does not appear that the claim had been duly entered before this day, I will then dismiss the suit with costs.
14th June, 1831. CHRISTIAN, D.
GENESTE for Pltff. ; ROPER for Deft.
This was a suit, brought on by common warrant, to obtain an execution for the amount due upon a bond and security.
ROPER, for deft., objected to any execution being granted, the pltfl: having, no less than three years ago, obtained an order of possession of the mortgaged premises, and had ever since been, and then was, in the receipt of the rents, issues, and profits of the pre-mises given in security. No doubt he might have obtained an ex-ecution in the first instance, but having elected to take an order of possession, he cannot now come in and ask for an execution.
GENESTE, for pltff.-This is not a case of election. The pltff's. having taken the one remedy does not in any way bar him from the other; for, under his deed, he is entitled to both, and the deft. was in nowise injured, because he could only be called upon to pay the debt once, and whichever cause first attained that object, would necessarily put an end to the other.
Deemster CHRISTIAN.-Here is both a bond and a mortgage. Under the latter, the pltfl: has a right (if the interest be in arrear) to be put into the actual possession of the lands given in security. Under the bond, he has a right to execution for all that may be due upon it. Having recourse to his right under one part of the deed does not destroy the right given to him by the other, and therefore execution must be granted in this case.
8th July, 1831.- PHILPOT, V. G.
GELLING for Pltff; DUMBELL for Deft.
Suit brought to have the deft. ordered to return an jnventory of the estate of the deceased. The deft. had been summoned under a warrant.
Objected by the deft. that the suit ought to have been brought by petition.
Pltfl: stated that the deft. had been made acquainted with the nature of the suit which was the only object of a petition. Deft.-Such applications are matters of record, and the prac-tice is always to bring them by petition.
Per Curiam.-It is of the greatest importance that the rules of the court should be known, which can never be the case if the practice is varied. Matters of this kind are always brought by petition. The suit must be dismissed.
HOUSE of KEYS, 21st July, 1831.
To his Honour the Lieutenant-Governor.
We have taken into consideration your Honour's queries, 1st. "Whether a tenant, being bound and restricted by a covenant in his lease to spend the fodder on the premises, commits any infraction of that covenant, or of the Common Law or custom of the Island, by selling or disposing of a crop of rye-grass or clover-hay?" and, 2nd., " What is considered to come under the denomi-nation of fodder by the Common Law and custom of the Island ?" Upon the first question, we are of opinion that the tenant commits no infraction of his lease, or of the Common- Law or custom of the Island, by selling or disposing of a crop of rye-grass or clover-hay, and that "straw" only, comes under the denomination of "fodder" by the Common Law and custom of the Island
John Tear, Jun.,
John Cæsar Gelling,
John C. Crellin,
Wm. Leece Drinkwater,
W. W. Christian,
Edward M. Gawne,
9th Aug., 1831. CHRISTIAN, D.
DUMBELL for Pltf . ; GENESTE and GAWNE for Deft.
This suit was brought, under a Deemster's warrant, to obtain execution for the amount of a bill of costs, incurred before a Trespass Jury.
The costs had been taxed ex garte.
The facts were these. A Trespass Jury warrant had been sued out by the present deft. Gelling, against the pltlf The jury gave damages against Cannell, and Cannell traversed this verdict. The matter was heard before the Traverse Jury, and they reversed the verdict of the Trespass Jury, and awarded costs of the first jury to Cannell. Cannell now brought his suit to recover the costs so awarded.
GENESTE and GAWNE, for the deft., objected. First,-the bill must be taxed in presence of parties; second,-the Traverse Jury had no right to give costs to a deft. under a Trespass Jury, be- , cause all persons are bound to appear before a Trespass Jury and give their oaths, but cannot recover any costs afterwards, if no ver-dict is given against them.
DUMBELL, for the Pltff-As to the first objection, no doubt the deft. has a right to have the costs taxed in the presence of parties, and the cause must be continued for that purpose, if the pltff. requires it; but the usual practice is to bring the deft. into court without putting him to the expense of taxation. As to the second point, this court cannot alter the verdict of a jury, but the verdict must be looked upon as conclusive. If the deft. was dissatisfied with the costs of the first jury being awarded against him, he should have traversed the verdict to the House of Keys; but not having done so, we must presume he was satisfied with the judgment.
GENESTE, in reply, argued that the present suit ought not to have been brought at all until after the costs had been taxed in presence of parties. It was quite different where damages were given. If a pltf. obtains a verdict of one shilling damages, he would have a right to come into court and ask for an execution, with costs to be taxed, and he would obtain it. But here there were no damages, and, consequently, no foundation for an execution. The Deemster's execution must have a sum certain for its foundation, and taxation of the bill of costs in the presence of parties can alone fix the amount in a case like the present.
Per Curiam.-Without expressing any opinion upon the right of the Traverse Jury to give costs of the Trespass Jury to a deft. summoned before it, I shall, for the present, order the costs to be taxed in the presence of parties, and continue the suit for that purpose.
The costs were afterwards taxed in the presence of parties, and the objection "that the jury had. no right to award such costs" was again urged before the Clerk of the Rolls, but his Honour, held the verdict .of the jury binding upon him, and taxed the bill.
The costs were afterwards paid without further suit.
NOTE.-In this case, the objection as to the right of a Traverse Jury to award costs to a deft. in a Trespass Jury, is not gainsaid by the pltff's. advocate. He relied upon the verdict as it stood, and the Deemster seems to have felt bound by it. The Clerk of the Rolls gave no opinion, except as to the legality of the several charges made in the bill of costs. The right of the Trespass Jury, there-fore, to award costs to a deft. is still open to enquiry; at least, so far as this case is concerned.
COMMON LAW, 11th Oct., 1831. HEYWOOD, D.
QUIRK and GENESTE for Pltff.; CUNNINGHAM and DUMBELL for Deft.
The pltffs. advocates moved for a continuance of this cause. Deft's. advocates contended, upon the following grounds, that the pltff had, in fact, submitted to a nonsuit, and the cause could not now be entered on the list, but must be looked upon as out of court. A commission had been obtained by the pltfl: to examine witnesses in England, which had been duly forwarded. The cause had been continued the last term, in the usual way, without notice to parties, the commission not having been then returned. But, subsequently the commission was returned, and, by consent of the advocates on both sides, was opened before the Clerk of the Rolls. The deft's. advocate remarked at the time, "I suppose the cause will now come on next court." Notwithstanding the return and publication of the commission, the pltff. had not thought proper to summon the deft. for this court, and had thereby abandoned the suit.
For the pltff it was denied that there was any intention of abandoning the suit, nor was the fact of deft. not being summoned any ground to infer an intention to suffer a nonsuit. Pending the speeding and return of a commission, it was not necessary to summon a deft. to eaeh succeeding court, but the cause would be called by the pltfl: and entered upon the list .every term, as a matter of course. - In this case it was true the commission had been returned, but it had not been published according to due form of law ; the opening of it before the Clerk of the Rolls being a mere matter by consent of the advocates, and for the convenience of both parties, but it could not be looked upon as the formal publication required by law.
Per Curiam. The rule is that pending a commission to examine witnesses, the deft. need not be summoned any term within the period allowed by law for the return of the commission, and when the commission is returned it must be regularly published in the Common Law Court. The deft. must then be sum-moned for the ensuing term, In this case the commission, though returned, has not yet been published in due form of law. The opening of the commission before the Clerk of the Rolls is a mere matter of arrangement between the advocates, of which the Court can take no notice. The ordinary rule, therefore, must be entered, the commission returned and pu-lished, and the cause continued.
25th Nov., 1831. PHILPOT, V. G -.
GENESTE and BLUETT for Pltff; ATTORNEY-GENERAL, ROPER, and DUMBELL for Deft.
The present deft. (having been appointed executor of the last will and testament of Catherine Allen, deceased), presented, upon a former occasion, his petition to the court, for probate of the said will, and under that petition had noticed all the next of kin of the deceased. The present petitioner, in right of his wife (who was heiress-at-law to the deceased), disputed the will, upon the ground of the incapacity of the testatrix to make a will, and moved for, and obtained (as a matter of course), an order for a special examination of witnesses before the Episcopal Registrar. The executor proceeded, in the first instance, and examined the two subscribing witnesses to the will, and also the clerk who wrote the will ; and petitioner cross-examined these witnesses. After this formal proof of the execution of the will had been given, petitioner obtained a rule to examine his witnesses, to skew the incompetency of the testatrix ; and after several days' examination of other witnesses before the Registrar, petitioner summoned the two witnesses to the will, who had been previously examined, and claimed a right to examine them as his own witnesses. The application was resisted upon the part of the executor, and the Registrar refused to let the witnesses be examined without the special orders of the court ; pltff.. thereupon, presented his petition to the Vicar-General for the purpose, and the matter came on to be heard this day.
GENESTE and BLUETT, for the petitioner, contended for peti-tioner's right to examine these witnesses, upon the ground that the executor to the will had merely gone through the formal proof of its execution, and the petitioner had then to proceed to establish his special case, which, when his evidence was closed, the deft. would have a right to rebut by evidence of a contrary tendency. If, in such a case as this, neither party had any right to call the same witnesses as were examined by the opposite party, great in-justice might be done ; for a witness previously examined by the pltff. might know facts in favour of the deft., which, nevertheless, could not be brought out, until some previous evidence had been given by other witnesses, of other facts known only unto them ; and who, of course, could not be examined until the pltff. had closed his case. At Common Law, it would not be disputed that both parties might charge the same witness, and both might examine him; and this practice was in strict accordance with the practice in England, as laid down in Starkie's Law of Evidence, 1 vol., 131. There, it would appear, the right of both parties to call the same witnesses was not disputed; the only question raised was, whether the right to put leading questions continues to a deft. when (to prove his own case) he calls a witness who had been previously examined by the pltff., and cross-examined by the deft. Such being the practice at Common Law, the fact of the depositions being, in the present instance, taken in writing and. signed, could not alter the real principle of the case.
For deft. it was very strenuously argued, that, if the doctrine laid down by the petitioner's advocates was held to be correct, it might lead to the most dangerous consequences in the opportunity it would offer, and the inducement it would hold out, for the commission of perjury. At Common Law, this result was less likely to happen, because, the witnesses were all supposed to be in atten-dance at the same time, and were all examined on the same, or on consecutive days, if the trial was a long one; and thus, no time was afforded for getting up false evidence. But, in examination of witnesses before the Registrar, the publication of the evidence, and the length of time which unavoidably elapsed between the ex-aminations, made a wide difference. The witnesses, now sought to be examined by the petitioner, had already been called by the pltff., examined by him, and cross-examined by the petitioner, and their depositions committed to writing, and signed by them; could those witnesses be recalled for the purpose of trying to make them contradict what they had previously sworn?
For the petitioner it was replied, that the situation of the parties in a case of disputed will was sui generis. The executor, in the first instance, was not called upon to do more than prove the due execution of the will. The opposing next of kin puts a new point in issue. He does not deny the execution of the will, but affirms that the testatrix was incompetent to make it, and thus, in fact be comes pltff. in the suit. That this was a distinct trial, as it were, is proved by the practice adopted, viz., that after the petitioner has gone into evidence, and closed his case, the executor goes into ëvi-dence in the same manner to rebut it. The object of the present application was not to make the witnesses contradict what they had already sworn, but to elicit from them new facts which could not be brought out before for want of the introductory evidence of other witnesses ; and if the petitioner was not allowed to examine them, facts would be kept back from the court which it was important for the ends of justicë that it should know.
The VICAR-GENERAL, having taken time to consider the point, stated, this day, "That as the situation of the parties was cer-tainly peculiar, he was disposed to allow the witnesses to be ex-amined, provided the points to which they were to be examined were stated on the face of the petition to be presented to him, that the Court might judge whether the evidence required was material, and necessary to the ends of justice.
16th March., 1832. PHILPOT, V. G.
BLUETT for Pltff ; DUMBELL for Deft.
Suit brought by petition to have an inventory returned of the estate of the petitioner's deceased husband.
The deft. made no objection, but stated, that no application had been previously made for a return, and therefore the administrator was not liable to costs.
Per Curiam.-Certainly ; an administrator is only sworn to return an inventory when thereunto lawfully required. On a first application, therefore, no costs were ever allowed; but if the first order is not complied with, and a second application is rendered necessary, then I should allow the costs of it.
2nd May, 1832. HEYWOOD, D.
HARRISON for Pltff.; DUMBELL for Deft.
The deft., in his capacity of Lockman, held executions against the deft. in favour of different pltffs., to whom, by giving indulgence to the deft., he had himself become liable, and had finally paid the amount of their executions to the several pltffs.
The pltff. had previously sold the deft's. goods to the amount of part of the execution, and the present suit was brought by the pltff, as Lockman, to get an execution, in his own name, for the balance due on the several executions, the debts being now due to him.
DUMBELL, for deft., objected, that the Lockman had no right to a new execution, merely because he had paid the money; but that he might enforce the former ones, which were always good against the deft. until paid by him.
The Court held with deft., and dismissed the suit.
CHANCERY COURT, 7th June, 1882.
GENESTE for Pltff. ; DUMBELL for Deft.
The pltff's wife, in this matter, had taken out her action of arrest to hold the deft. to bail for the maintenance of an illegitimate child. The deft. Tupper had become bail in the usual form, and pltff. now moved for a transmission, the deft. and bail having been summoned in due course of law.
The deft. and bail appeared by Mr. Dumbell, and the bail surrendered his principal a prisoner in court, and moved that the deft. be returned to gaol, and himself discharged from his liability as bail. The deft. Clark surrendered himself a prisoner, and admitted the debt sued for.
GENESTE, for pltff., contended, that the action being to hold the deft. to bail for the future maintenance of the child, the bail could not be released, and that he was entitled to a transmission.
DUMBELL, for the bail, contended, that his client was only bail for the personal appearance of the deft., and not for the debt ; that the pltff. had no option, but must take his decree against the deft.. Clarke alone for the debt admitted by him.
Per M'HUTCHIN.-The bail must be discharged, but the pltff. may take his decree, stating, specially, that the deft. is to give secu-rity for the future maintenance, and the gaoler must take charge of the deft. as his prisoner.
15th Feb., 1833. HARTWELL, V. G.
DUMBELL for Pltff.
This was a case of affiliation on which the deft. was duly summoned, but did not appear.
DUMBELL moved to have the affiliation made in the usual way, by the oath of the pltff, and for a presentment against the deft., with a view to obtain the usual order for the lying-in expences. Affiliation and presentment granted.
13th May, 1833. HEYWOOD, D.
HAINING for Pltff: ; M. H. QUAYLE for Deft.
This was a suit to recover £2 for the grazing of a cow.
Deft. admitted the money to be due, but stated that it was arrested in his hands, under a Deemster's arrest, for the rent due by the pltff to D. Wilson, Esq., under whom pltff held the lands on which the cattle had been grazing.
Deemster HEYWOOD.-Under the ordinary arrest for rent, nothing can be arrested but the goods and chattels which are either found upon the premises out of which the rent arises, or else have been removed from off those premises, and were after-wards arrested within the time limited by law. I shall not, however, give costs against deft., because, the arrest having been laid, the illegality of it could not be decided but by a court of competent jurisdiction. Let the pltff, therefore, take execution without costs.
27th May, 1833. HEYWOOD, D.
Pltff. in Person; BLUETT for Deft.
This suit was brought for the sum of £13 108 ., rent of a house. For deft., it was stated, that on the day before it was due, viz., the 11th May, he tendered the rent, but the pltff. refused to receive it, because the deft. deducted three shillings and sixpence which he had paid for high-road labour, and which, deft's. advocate contended, the landlord was always bound to pay, unless there is a special agreement to the contrary, and prayed costs.
Deemster HEYWOOD.-The landlord is bound to pay the high-road labour unless there is a special agreement to the contrary. The three shillings and sixpence must, therefore, be deducted off the rent but the tender of money only saves a deft. from paying costs, and does not entitle him to receive them. Let the pltff take execution without costs, deducting the three shillings and sixpence for the high-road labour.
19th July, 1833. PHILPOT, V. G. ,.
QUIRK, Attorney-General for Pltff.; DUMBELL for Deft.
This suit was brought to recover the amount of a promissory note executed by the deceadant in the presence of two witnesses, who were called and proved the note.
DUMBELL, for deft., thereupon called upon the pltff. to be examined upon oath.
QUIRK, for pltff, objected, as the pltff. had proved his case by witnesses.
DUMBELL: The witnesses only prove the execution of the note -they prove nothing of what has happened since, or what was the consideration for passing the note. The whole, or a part, may since have been paid, or the original consideration may have been illegal. In this case, the deft. has reason to believe the note was passed for a tipling debt, and this may be discovered by examining the pltff. upon oath. This is the right of every executor and ad-ministrator, to enable him to discover the true state of the deceadant's effects.
QUIRK, for pltff-The utmost that au executor can claim is, to examine the pltff as to payments on account; but even this privilege he was not prepared to concede, when the case was clearly proved by witnesses. But he contended that the pltff had no right to submit to be examined as to the original consideration of the note.
Vicar-General PHILPOT. It is the invariable practice in this court, and I see nothing in this case to take it out of the general rule ; let the pltff be examined.
The pltff. was accordingly sworn, and admitted, upon oath, that a part of the debt due to him by the deceased was for drink, but he could not tell how much, or how much for other things. The VICAR-GENERAL was of opinion, that as no evidence was given, either by witnesses or the oath of the pltff, to prove any other consideration for the note than " tipling," he was bound to conclude that it was the only one; and, therefore, he could only grant an order for five shillings, within the terms of the statute.
NOTE In all cases of this kind the Ecclesiastical Court proceeds upon the presumption, that the executor is ignorant of the true state of the affairs of the deceased, and, therefore, it allows him the privilege of examining parties upon oath to make discovery of the goods and effects of the deceased; and so, claimants against the estate may be examined (as in this case); for the party against whom the claim is made is dead; and there are no other means, in most eases, of ascertaining the truth.
2nd Dec., 1833. HEYWOOD, D.
KELLY and QUIRK jun., for Pltff.; Deft. in Person.
This was a suit to recover the amount of an account for shoes. The pltff was a shoemaker, and having a demand against the deft., he made out his account, which he enclosed in a letter to the deft., and then brought his suit to recover the amount.
The deft. admitted having received the letter and the account, but objected to the suit, no demand having been made out of court for payment of the money.
It was contended for the pltff, that the deft., having received the account, ought to have come to the pltff. an4,,paid the money ; whereas it was replied for the other side, that the pltff. should have come to the deft. to ask for it.
Deemster HEYWOOD.-Delivering a letter with an account is not a sufficient demand. Generally speaking, it is the duty of the creditor to call on his debtor for payment at his own dwelling. There are special exceptions to the rule, but sending a letter is not one of them.
2nd Dec., 1833. HEYWOOD, D.
DUMBELL for Pltff: ; QUIRK for Deft.
This was a suit to recover a sum of money due for rent.
The deft's. witnesses being called, one of them did not appear. His advocate stated that he could not go into his case without the absent witness, and moved for a presentment against him, and a continuance of the cause.
DUMBELL, for the pltf, called upon the deft. to shew that the witness had been summoned, and contended that he had no right to a presentment or continuance unless he could produce a certificate of the summons.
QUIRK, for deft., contended that he had a right to a continuance to prove the case. That the witnesses name was " on the list." That it was true be had no certificate, as there was often much difficulty in getting certificates of distant summonses in time for the court, and the officers did not usually attend, with the exception of the Coroner of Middle. If he could not produce a certificate to the Deemster, of course, he could not get a contempt, and he must pay the costs of the continuance.
The Deemster continued the cause at the instance of the deft.
Deemster HEYWOOD desired it might be understood as a rule of his court for the future, that, when a Coroner had an execution put into his hands to enforce against the effects of a deft., he was not to go immediately and summon to his court any persons he supposed might be indebted to the cleft., but was himself to summon them before the Jury of enquiry in the first instance, and to swear and examine them before the jury, to discover effects.
28th April, 1834. HEYWOOD, D.
DUMBELL for Pltff. ; BLUETT for Deft. To recover the amount of an account.
The deft's advocate tendered evidence of certain declarations made, upon oath, by Duncan, when examined as a witness before the Governor, in a case of one Fitzgerald.
DUMBELL, for the pltff , objected to any evidence being given of what the pltff. might have sworn upon oath in that court, except the Clerk of the Rolls' minutes.
BLUETT, in reply, stated, that the Clerk of the Rolls, on such occasions, merely took short minutes of what was material to the cause in which the witness was examined. Those minutes would only prove that the witness bad sworn what the Clerk of the Rolls had written; but the witness might have said many things which were not taken down, as irrelevant to the case then before the court, although important to this case, forasmuch, as that the declarations of a party against himself, may be proved by any witness who heard him make them.
The Court ruled otherwise, and refused to let the witness be examined.
The pltff's. case was then proceeded with; and some general evidence having been given of work and labour done for the deft. Pltff's. own oath was tendered in proof of the amount.
Deft's. advocate objected to the pltff's oath being taken,.and contended that he was bound to prove the whole case by witnesses. For the pltff, it was contended, that, in accounts consisting of many very small items, it was, in general, impossible to prove them all ; and the common practice of the court was, in such cases, to allow the pltff., after giving general evidence of work done, or goods furnished, to make oath to the whole of his demand, and sub-ject himself to the cross-examination of the deft.
The Court overruled the objection, allowed the pltff. to swear to his demand, and granted execution for the amount.
LIB. PLI., 1st July 1834.
Declaration filed stating that pltff's, their ancestors, and tenants, had, from time immemorial, enjoyed an easement, with a footpath to the high-road, adjoining their own premises. That the deft. being proprietor of a mill and premises adjoining, encroached upon, and committed damage to pltff's premises, by sinking a pit for the mill wheel, which shook their gable wall, and did other damage to the pltff's.
The deft. at the hearing of the cause upon the merits, pleaded the general issue, and further, that the suit being brought to establish a right to real property, only nominal damages ought to be given.
To which it was replied, that the recovery of damages was the principal object of the suit, and it was necessary to setup the right, in order to establish the claim to damages.
The jury returned a verdict, that the pltffs. were entitled to the easement and footpath in the pleadings mentioned, and also to recover £15 damages and costs.
NOTE.-This verdict was appealed from, but the appeal was subsequently dismissed for want of prosecution.
HOUSE of KEYS, 17th Nov., 1834.
GENESTE and ROPER for Pltff. ; T. A. CORLETT for Deft.
In the course of this cause GENESTE objected to the respndt's. advocate reading a will, which he stated he was not aware had been submitted to the jury in the court below, and which was not marked by the judge as having been an exhibit in the cause.
CORLETT contended that it being a document upon record,-connected with the cause, he had a right to read it. The judges in the court below had never been in the habit of marking official copies from the record as exhibits. He, however, pledged his word, that the will had been read to the jury, though not marked as an exhibit.
The House permitted it to be read, upon Mr. Corlett's assurance that it had been read to the jury.