[from Advocate's Notebook, 1847]
COMMON LAW, 19th May, 1835
DUMBELL for Pltff. ; CORLETT for Deft.
This was the second court, and when the cause was called on the pltff. moved for a continuance, but
CORLETT, for the deft., contended, that the cause must stand dismissed. The defts. were natives and residents, the pltff. was a stranger, residing off the Island, and after he had filed his declaration, the deft., in the usual course, presented his petition to the Governor, praying that the pltff. might be ordered to give the accustomed security for costs. Upon the hearing of that petition, the Governor was pleased to order " that the pltff., before he be permitted to proceed further in the cause in the petition mentioned, do give security into the Rolls Office, to be answerable to the petitioner for such costs as may be awarded against him." This order had been duly served upon the pltff. on the 12th inst., but had not yet been complied with, and, therefore, deft. contended the pltff. must be nonsuited.
DUMBELL, for the pltff., stated in answer, that whenever an order was obtained for the pltff. to give security for costs, the practice was for the court to continue the cause at the term next ensuing the date of the order, that the pltffs advocate might have time to communicate with his client. The same point was contested in the case of West v. Dixon, Michaelmas Term, 1831, and Bluett, advocate for the pltff., was allowed to continue the cause. The Court ruled with the pltff., and the cause was continued.
T.A. CORLETT for Pltff. ; F. B. CLUCAS for Deft.
This suit was brought to obtain the Deemsters execution for £100 and interest, the amount of a bond and security.
John Lace, being seised of a quarterland estate of inheritance, in the parish of Bride, called Ballagarret, by deed of bond and security assigned the same to the pltff.
Subsequently, Lace sold the premises to Moore ; and Logan now sued the deft. Moore for the amount of his bond and security, and demanded to have an execution.
Objected, for the deft., that he was no party to the original bond ; and, as purchaser of the land, although he was liable to have the lands taken in possession if the interest was not paid, yet he was not liable to have an execution sued out against him, for he stood in the shoes of the grantor as to the estate, against which, as it was an estate of inheritance, no execution could be granted, or enforced.
The objection was held good, and execution refused.
EXCHEQUER Court, 24th Feb., 1836.
DUMBELL for Pltff. ; BLUETT for Deft.
In 1797, Henry Quilliam settled the lands in dispute upon John Quilliam, his eldest son, half in present possession, and half at the decease of the grantor, in the words following : " Know all men, by these presents, that I, Henry Quilliam, of Kirk Patrick, for the love, good-will, and affection, I have, and do bear, towards my dutiful son, John Quilliam, of said parish, have given and granted, and by these presents do give and grant, one moiety of my concern of the quarterlands and intacks, situate in the parishes of Kirk Patrick and Kirk German, and the other half of the said premises at my decease, together with half of the corn mill, commonly called " Mullen-e-Cly," at my decease, reserving for myself the use and privilege of the said mill during my natural life, together with the millers house and garden, and other the appurtenances thereto appertaining. And I, the said Henry Quilliam, do hereby give, grant, and settle upon their heirs, being the heirs of John Quilliam and Isabella Quilliam his wife, according to law, who are to possess the said settled premises, and to run and stand in the nature of inheritance. And I, the said Henry Quilliam, do hereby give and confer upon my said son John Quilliam and Isabella Quilliam his present wife, one-half of the crop of corn and hay, together with half of the husbandry gears, in present possession ; and John Fargher, father of the said Isabella Quilliam, alias Fargher, wife of the said John Quilliam, does promise, and hereby engages himself, to pay, as portion or dowry, unto the said John Quilliam and Isabella Quilliam his wife, the sum of £40 Manx currency of this Isle ; and, in case the said John Quilliam and Isabella Quilliam, his present wife, shall have no surviving issue, that then the said portion hereby shall return to the said John Fargher or his executors, and that the said Henry Quilliam and John Quilliam, his son, do hereby promise to pay the incumbrance or interest of the mortgage on the settled premises equally between them. And, for performance hereof, the parties before concerned have mutually bound themselves, their heirs, executors, administrators, and assigns, in the penalty of £200 sterling, to be levied and paid according to law ; as witness their subscriptions, this 5th of March, 1721.
"JOHN FARGHER, his x mark."
" Signed and delivered in presence of
" THOMAS QUARK."
In March, 1798, Henry Quilliam and John, his eldest son, joined in a deed of sale of the whole estate to Silvester Teare, but the respndt. Isabella did not sign the deed. Silvester Teare got into debt, and in November, 1820, John Caley, the Coroner, sold the premises, under execution, to the applnts. William Teare and John Quirk. In 1835, John Quilliam died, and the respndt. brought her suit in the Deemsters Court, against the appints. claiming, as widows right, one-half of the said lands, and, upon a hearing, his Honour Deemster Christian adjudged her entitled to one-half, as dower in the said lands, and from that decision the present appeal was brought.
On the 24th February, 1836, the Court made the following judgment:
Respndt. is only entitled to a right of dower in the one-half or moiety of such lands as the said John Quilliam was, in his lifetime, seised and possessed of. It is, therefore, hereby ordered and decreed, that the applnts. be quieted in the possession of the said lands of Ballahig, &c. &c. ; and that the respndt. be put into possession of the one-fourth part of the said lands, in right of dower, or the rents, issues, and profits of the same.
NOTEI have set out this deed at length, as its imperfections led to several cases, the decisions in which are referred to in other cases herein;
10th Oct., 1836.
Deemster HEYWOOD stated, that he had taken an Opportunity of consulting with the Staff of Government upon the course of proceeding now usually adopted in the case of bail and principal, and that the Court had come to the conclusion that the more convenient practice would be, for the bail to be summoned at the same time as the principal. The judgment would then run against the principal in the first instance, and, in his default, against the bail. By this practice the expenses of a second suit would be saved. The bail would have an opportunity of defending the first suit ; whereas, otherwise he would be bound by the judgment made against the principal behind his back, sometimes, perhaps, by collusion between the creditor and debtor, to the prejudice of the bail. He, therefore, desired it to be understood, as a rule of his court, that, for the future, the bail and principal were to be sued together.
7th Nov., 1836.
DUMBELL for Pltff ; BLUETT for Deft.
This was a suit by common warrant to obtain the Deemsters execution for the costs of a nonsuit at Common Law, the bill for which had been taxed ex parte
For deft., it was objected, that no demand had been made upon the deft. for the amount out of court. That, if an opportunity had been offered her, the deft. might have been satisfied to pay the bill without taxation, and so have saved the expenses of this suit.
For pltff., it was argued, that no demand was necessary ; in point of fact, the present proceeding was merely following up the suit at Common Law to final judgment, by obtaining an execution, without which the nonsuit was of no avail for recovery of the costs. For deft., it was replied, that the present suit differed from the case of a pltff. at Common Law following up a verdict in his favour to execution. This was entirely a new suit, in which the former deft. was now pltff. ; and, if a new suit, then it was fair to argue that there ought to have been a demand made before commencing it. Per Curiam, I cannot look upon this as a new suit, it is merely following up the case at Common Law, and is, in fact, the final stage of that suit. If the deft. is dissatisfied with the charges in the pltffs bill, he may have it taxed in the presence of parties, otherwise execution will be granted with costs, as a matter of course.
No objection being made to the items of the bill, execution was granted accordingly.
COMMON LAW, 1837.
BLUETT and DUMBELL for Pltff. ; QUIRK, Attorney-General for Deft.
The pltff. had entered his claim in the Ecclesiastical Court against the estate of the deceased for the sum of £500, for the damage the pltff. had sustained by the non-fulfilment of the covenants of a lease, and for money lent, including the amount of a promissory note.
Upon the hearing of the cause, in the Vicars Court, the matter was referred to a Court of Common Law.
The pltff., therefore, filed his declaration at law, wherein he stated the circumstances of the breach of covenant as to the lease, his demand for money lent, and for the promissory note, the commencement of the suit in the Vicars Court, and the reference to Common Law. The pltff. laid his damages at £500.
To this declaration, the deft. filed a demurrer, alleging for cause, " that in and by the said declaration, the pltff. had declared and complained for certain alleged breaches of covenant, and sought to recover damages for the same from the estate of the said John Skillicorn, and yet, in the same declaration, the pltff. hath declared against the said deft. in an action for debt, for money alleged to have been advanced and lent by the pltff. to the said John Skillicorn, and for the amount of the said John Skillicorns promissory note ; and also for that there were alleged causes of action, different in their natures, comprehended and included in the said declaration, to wit, a pretended cause of action, founded on an alleged breach of covenant, and also an alleged cause of action, for money said to have been advanced on loan to the said John Skillicorn, and also for that a cause of action, founded on an alleged breach of covenant, ought not, and could not be blended and in-eluded in one and the same declaration with a cause of action for debt."
Upon the hearing of the demurrer, the pltff. argued, that there was no reason why the two matters should not be heard together. The verdict in both cases would be money, and as the Vicar-General had not referred any particular portion of the pltffs claim to law, but the whole claim, as entered upon the record, the pltff. might be justly charged with putting the deft. to unnecessary expense, if he had split his demand into separate suits.
For the deft., it was argued that the Vicar-General would have granted an order for the note and referred the rest to law. It was clearly laid down that an action for debt and for breach of covenant could not be joined, the issues to be tried being distinct in their nature, and the matters to be investigated quite different.
The Court held the demurrer good, and dismissed the action.
COMMON LAW, 23rd May, 1837.
BLUETT for Pltff. ; DUMBELL for Deft.
This was an action to recover damages from the defts., who were alleged to have carried on business together, as partners, under the firm of Wm Quiggin & Co.
Proof was given that the defts. Wm. & R. Quiggin had Contracted, but no evidence was obtained against Forbes.
The defts. declined to call any witnesses, upon the ground that the contract being alleged to have been made by three, proof against two was insufficient.
Per Curiam. I am of opinion the pltff. has failed in his proof of a joint contract by three partners, and cannot obtain a verdict against two.
The pltff. submitted to a nonsuit.
lst July, 1837.
QUIRK, jun.. for Pltff. ; CARRINGTON for Defts.
In this case the Deemster stated, that when an execution was duly enforced, and a jurys return of no effects obtained, the execution, though withdrawn from the Coroners hands, would still be in force, and entitled to preference, according to its date, over any later execution, if replaced in the Coroners hand after the discovery of any property liable to be sold for debt, and which was in possession of the deft. at the time the execution was granted.
NOTESee the case of Nelson v. Kinnish, 68.
l0th July, 1837.
DUMBELL for Pltff. ; QUIRK and STEPHEN for Deft.;
BLUETT for Watts.
Twiss had taken out his action of arrest against Damor, and Watts became bail to it in the usual form. The action was duly transmitted out of the Chancery Court to be tried in the Deemsters Court, and the pltff. subsequently obtained the Deemsters execution against the principal and bail. The execution was duly enforced, both defts. gave pawn upon it, and a jurys return of no effects was made out against them both.
The pltff. now presented his petition to the Deemster to obtain an order of imprisonment against both defts,
For the bail it was objected, that as he was only bail for the personal appearance of the deft., he was only liable in the event of Damor making an ultimate default, and his body not forthcoming to answer the judgment.
The Court considered, that the matter having been permitted by the bail to go to an execution and jurys return, against both parties, the order of imprisonment must now also be granted against both, as a matter of course.
Order, with costs.
COMMON LAW, 17th Oct, 1837.
CORLETT and CLUCAS for Pltff. ; BLUETT and DUMBELL for Deft.
There being only two short causes for trial this term, and the harvest late, it was proposed by the Deemster and the advocates on both sides, in order to accommodate the jurors, who were chiefly farmers, that the jurors should be ballotted for in both the cases, and that the rest of the pannel should be discharged.
The jurors were accordingly duly ballotted for, and sworn, and the first cause was tried ; but when the second suit was called on, the pltff. moved for a continuance, upon the ground of the absence of a witness, for whom a summons had been left on Saturday last only.
The application was resisted by the deft., who contended, that the jury having been once sworn, the cause could not be continued with the same jury ; neither could the jury be discharged in any way but by the pltff. submitting to a nonsuit, or else going to trial and the jury returning a verdict. The pltff. was not without redress. If he felt he could not go to trial in safety without the witness, he could move for a presentment against him for not appearing, and submit to a nonsuit. If the witness was legally summoned, he would be liable to pay all the costs on both sides ; if he was not legally summoned, the pltff. must take the consequences.
For the pltff., it was alleged, that if he could shew that due diligence had been used to get the witness summoned, he had an absolute right to a continuance, especially from the circumstances under which the jury had been sworn. There was no time limited for summoning a witness ; he might be summoned at any time ; but here he had a legal summons left at his house even so far back as Saturday last. In the case of Wade v. Kneen, the Court granted a continuance, on account of the absence of a material witness, after the jury was sworn, even though it was a Jury of View.
For the deft., it was replied, that it was expressly because it was a Jury of View that the cause was continued in the case of Wade V. Kneen. A Jury of View was necessarily an exemption to the general principle, and for good reason ; the witnesses could not possibly be summoned until after the Jury of View had been sworn, and neither party could object to a jury being sworn on account of a resident witness not duly summoned, being absent ; for even supposing (what never was done) that a witness had been summoned, before the Jury of View was sworn, still, how was the necessary affidavit to be made ? Though absent the day the jury was to be sworn, non constat that he might not be present on the day the cause was to be tried. But in the present case (and cases like it) it was competent to the pltff. to have made the application before the jury was sworn, and he might, if good cause were shewn in his affidavit, have obtained a continuance ; but, after the jury was sworn, it was too late. It would be an extremely dangerous thing if the judge had the power, after a jury was sworn, to adjourn or continue a cause, at the instance of either party, upon the suggestion of a witnesses absence. Suppose the possibility of a corrupt judge anxious for a favourite suitor ? He might ruin the opposite party by a succession of such continuances for different witnesses.
Deemster CHRISTIAN I am much impressed with the observation, that a corrupt judge might impede the course of justice, if such an authority could be vested in him as that which I am called upon by the pltff. to exercise in this case. Bat the real difficulty with me is, how am I, sitting here as judge, to discharge the jury ? The deft. has joined issue, and the jury are sworn to try the issue joined between the parties. The cause is now begun, and must go on, unless the pltff. thinks fit to suffer a nonsuit ; but, if otherwise, I can neither grant a continuance nor discharge the jury. The pltff. must proceed with his suit.
23rd Oct., 1837.
DUMBELL for Pltff. ; If. H. QUAYLE for Deft.
This was the second day this cause had been in court. The suit was brought to recover the amount of an account. The pltffs. witnesses, in proving the account, stated, in reference to one item, that the transaction took place about four years ago.
Deft. had denied the whole account on the former day, and now pleaded the Statute of Limitations to that particular item.
The pltff., therefore, moved for a continuance of the cause, alleging, that he could bring evidence to take this part of the case out of the statute.
Deft. contended, that if the pltff. was at all entitled to a continuance, it could only be granted on payment of the costs of the day ; because, the deft., having denied the account on the first day, the pltff. ought to have come prepared to prove his case now.
For the pltff., it was replied, that the deft. had, on the former hearing, merely denied the account, and the pltff. had come prepared ; but now that the account was proved to be correct, the deft. set up a new defence, alleging that, although proved, a part of the debt could not be recovered on account of the lapse of time; i.e., he pleads the Statute of Limitations. In strictness, perhaps, it might be too late to plead it ; but, if allowed, the pltff., who is taken by surprise, ought to have time to rebut this new defence.
Per Curiam. The plea of the Statute of Limitations was not made before it arose (and I think properly) out of the evidence given to day ; it was not shewn upon the face of the account, but the pltff. is thereby taken by surprise, and is, therefore, entitled to a continuance to produce evidence to take that part of the case out of the statute, if he can ; but he must be limited to that point alone.
Cause continued accordingly.
23rd Oct., 1837.
M. H. QUAYLE and DUMBELL for Pltff. ; STEPHEN and QUIRK for Deft.
Suit, under a warrant, to recover the amount of a Trespass Jurys verdict, and the costs of the suit.
The deft. objected, in limine, that no account of the costs had been furnished to the deft., nor any demand made for the amount of the verdict or costs, out of court. If such account had been furnished, and demand made, the deft. would have had the option at any rate, if he thought proper, of settling the matter, and saving the expenses of the day.
For the pltff., it was alleged, that this was the only course to be pursued, and was the same as the proceedings to recover a jurys verdict at Common Law. It was merely following up the cause to final judgment, and it was not necessary, in cases of trespass, to furnish any account of costs, the practice is to have it in the court, and the court awards what it thinks proper.
Per Curiam. Neither account nor demand is necessary to be furnished or made in this case. It is only following up the original proceedings by the necessary steps to obtain a final judgment. The costs are discretionary with the court.
The deft. then offered evidence to prove that, before the jury appeared upon the premises, he tendered twelve shillings to the pltff. in satisfaction of the supposed injuries, which was as much as the jury had awarded.
The pltff. denied the fact, and objected to any proof being given now. It should have been offered in evidence before the jury; they would have taken the tender into consideration, or the pltff. might have had the option of stopping the cause and accepting the amount tendered.
Per Curiam. The evidence of tender should have been made before the jury ; I cannot receive it now, for the jury have made their verdict, and I am bound to carry it into effect.
Judgment for the pltff.
27th Nov., 1837.
DUMBELL for pltff.; QUIRK and STEPHEN for Deft.
This suit was brought to obtain an order of possession of certain lands granted in mortgage to the pltff., the interest on the mortgage being in arrear.
QUIRK, for deft., objected to the suit as not maintainable, the pltff. having served the deft. with notice, by letter, to pay off the principal, interest, costs, and charges due upon the mortgage on Christmas next. Such notice, he submitted, was a bar to the present suit, the mortgagee having chosen his remedy. Moreover, to remove any doubt, the deft. was now prepared, in court, to pay, and did now tender, the full amount of the interest in arrear ; and as interest being " in arrear" was the only ground upon which a mortgagee could obtain possession of the mortgaged premises, if that were thus removed, the pltff. could have no right to an order of possession,
Upon the part of the pltff., it was replied, that notice to pay off principal, interest, costs, and charges does not in any way prevent the mortgagee recovering the interest in arrear, or which was running and became due before the expiration of such notice. That as to the alleged tender, it was only in Manx notes, which had been formally decided not to be a legal tender, To constitute a legal tender it must be made in the current coin of the realm, and made before the suit was commenced. A pltff. was not bound to take any notice of a tender made in ~ court.
Per Curiam. The court is not a money-changing place ; I can take no notice of a tender made in court. The notice to pay off the principal is no bar to the suit. The only question before me is,Is the interest in arrear ? If so, I must grant an order of possession of course.
The pltffs. advocate then moved for a copy of the letter produced by the deft., and wished to have it detained for that purpose.
The defts. advocate objected to the Court detaining the paper. If applied to out of court, he would give a copy.
Per Curiam,A paper has been produced before me by one party,
and read in the cause ; the other party has therefore a right to a copy of it. It may be important to the pltffs, and therefore
. Mr. Dumbell may copy it. I shall retain the paper till next court.
28th Nov., 1837.
DUMBELL. for Pltff. ; QUIRK, jun., for Deft.
The deft. in this case had been arrested under an action to hold him to bail for an alleged debt. Bail had been given in the usual form, and this was a suit brought under a transmission of that action from the Court of Chancery to be heard in the proper court of law.
The pltff. established his claim to the debt sued for, and moved for execution, with costs to be taxed.
For deft., it was contended, that he ought not to be subject to more than the common costs of a suit in the Deemsters court. Deft., although not a native of the Island, had been living in it for some time back, and was established in business as a teacher of music, by which he got a respectable income. He had no intention whatever of leaving the Island, and the taking out an action of arrest against him, and compelling him to give bail, was most vexatious and malicious. -
For the pltff., it was replied, that the deft. was a stranger in the Island, having no tie whatever to bind him to it, and might leave it at a moments notice. That the trade of the country was continually suffering from strangers running away in debt and defrauding their creditors. That the law of arrest was the only protection the tradesman had , and in the present case the pltff. verily believed the deft was about to leave the Island.
Per Curiam. The law of arrest is an exceedingly useful one, and, under the circumstances in which the Island is placed, an essential law ; but it is open to abuse as well as other things, and the courts of the Island have come to the resolution of checking that abuse by refusing the costs, unless good cause be shewn for having taken out the action. By this means the stranger would be satisfied that even-handed justice was intended to be dealt out to him. A native was as open to arrest as a stranger, upon good Cause shewn. The pltff. must therefore give some evidence of the grounds upon which this action was taken out, before I can decide upon the question of costs, and the deft. must satisfy me that, at the time of arrest, he was possessed of sufficient effects to pay the pltffs. debt. Let the cause, therefore, be continued for that purpose.
The cause was continued accordingly, and the pltff. shewed cause for the arrest ; but the deft. having failed to satisfy the court as to his property at the time of the arrest, the judgment was given against him, with costs to be taxed.
8th Dec., 1837.
HARTWELL, V. G.
J. G. MOORE for Pltff ; G. W. DUMBELL for Defts.
This suit was brought to recover the amount of an account.
The deft. pleaded that, before any summons was made, the deft. had tendered the money, which was admitted to be due, but the pltff. refused to receive the same, and, therefore, deft. contended that he was entitled to have his days costs deducted from the amount of the pltffs. demand, as he had been unnecessarily put to expense.
For the pltff. it was stated, that although a tender was certainly made before the summons was effected, yet, the tender was not made until after an advocate had been employed, and the warrant actually taken out and forwarded to the Coroner. That the effect of a tender was merely to save deft. paying costs, but did not entitle him to recover them.
It was stated, that, in order to prevent any difference in the practice of the two jurisdictions, it would be very desirable if the Vicar-General would advise with the Deemsters before deciding the point.
After taking time to consider, judgment was given for the full amount of the pltffs demand without costs
INSOLVENT DEBTORS COURT, 12th Dec., 1837.
BLUETT for Phil. ; DUMBELL for Defts.
The petitioner applied to be allowed the benefit of the Insolvent Debtors Act.
DUMBELL appeared for a creditor to oppose his discharge.
Objected, upon the part of the petitioner, that notice of opposition had not been served upon him in terms of the law, which required three clear days. The notice in this case was served at eight oclock on Friday evening, and the Insolvent Court being appointed to be held at eleven oclock on Tuesday morning, Sunday being no day in law, the petitioner had, in fact, only received sixty-three hours notice, whereas he was entitled to have seventy-two.
For the opposing creditor, it was replied, that in all cases where three days notice was required, any part of the day was held sufficient ; for example, summons on any part of Thursday was good summons to the Deemsters Courts on Monday, and so summons on any part of Monday was good summons for the Chancery Courts on Thursday. In this case notice had been served on Friday, which was a sufficient notice for Tuesday.
For the petitioner it was answered that by the practice of the courts, now become the common law of the land, summons to a court was certainly held sufficient, if made on any part of a day, but here was an express written law which said " three clear days." The fractional part of a day was, therefore, excluded by the express wording of the law, as three clear days must necessarily in-dude at least seventy-two hours.
The Court decided the notice to be insufficient.
17th Dec., 1837.
KELLY and GELLING for Pltff. ; STEPHEN and HARRISON for Deft.
Suit to recover £14, the amount of an account for several lots of goods bought by defts. agent, at an auction of the pltffs. effects.
The account consisted of items for several lots of turnips, some hay, and a goat.
It was objected, by the deft., that no memorandum in writing had been signed by the deft., and no delivery had been made, in whole, or in part, and therefore the deft. pleaded the statute of 1835, in bar to the suit.
KELLY and GELLING, for pltff., argued that earnest had been given, and drunk between the parties, which was tantamount to a delivery. That the doctrine did not apply to goods bought at auction, and that the articles were bought at separate biddings, and in separate lots, no one of which amounted to £5.
STEPHEN and HARRISON, for deft. The whole of the items in the account were for goods bought at one auction, and must be looked upon as one transaction, as much as goods bought in a shop, such, for example, as the materials for a coat, which would consist of many different things. -
Per Curiam. An auctioneer is always to be looked upon as the agent for both parties, and his entry in his auction book is a sufficient signing to bind either.
Evidence was produced of earnest having been given next day, viz., one shilling spent in drink ; but the pltff. afterwards suffered a nonsuit, not being prepared with evidence to prove the prices of the articles purchased.
1st Feb., 1838.
BEFORE HIS EXCELLENCY THE LIEUTENANT GOVERNOR, AS PRESIDENT OF THE COURT OF COMMON LAW.
BLUETT for Pltff.; DUMBELL for Defts.
The pltff. in this matter had filed his declaration at law against the Douglas Water Work Company, charging them " with having, by themselves or their workmen, entered into and upon the lands of the pltff. and committed divers trespasses, at divers times, by laying down thereon iron pipes, grating, &c."
The declaration further stated, " that the defts. trespassed on the pltffs. lands, and laid down an iron pipe, or pipes, by means whereof, the defts. had illegally drawn off, and diverted from the pltffs. said lands, large quantities of water which flowed thereon, and had sold the same for their own use and advantage, to the damage of the pltff., &c."
The declaration further stated, " that the pltff. had applied to the defts. to remove the nuisances complained of, but that they neglected to take away the same, or to make any compensation for the injury occasioned to the pltff., by reason of the said nuisances."
To this declaration the defts. filed a demurrer, stating, " that the pltff., by his declaration, sought to recover damages for certain trespasses, alleged to have been committed in removing, displacing, or destroying a large quantity of soil or earth of the pltffs. lands, and for certain other injuries. That the pltff. sought also to call in question the right of defts. to divert, draw off, and make sale of the water of a certain stream flowing through part of the pltffs. said lands ; and did, in his declaration, directly put such right in issue, and sought to recover damages for the same, thereby uniting, in one and the same declaration, two distinct and separate causes of action, different in their nature, whereby two issues must be joined between the parties requiring distinct and separate verdicts."
Upon the arguing of the demurrer, the defts. contended that the two matters stated in the declaration were distinct in their natures, inasmuch, as the defence to the one was quite different to the defence to the other, and the jury would have two distinct issues to try. The Water Work Company claimed no right to interfere with the pltffs. soil, and the defence might be that they did not do the act complained of; a verdict of damages would, in that case, be comparatively immaterial. But the company having a right to the dam, they claimed a right to the water in it ; and this would be their defence. But, under this form of action, if the jury should decide in favour of the pltff., they could only give a verdict of money ; and if they gave but one sixpence damages, it would so far decide the right, and render useless all the defts. works which they had erected upon the premises.
For the pltff. it was argued, that the two trespasses were properly joined, and that it would have been a just cause of complaint to have brought separate suits for them. That most cases of trespass were open to the plea of right. That the propel remedy for injuries to real property in possession was trespass. Many trespasses, if committed at the same time or continuously, might be joined in the same action ; and if the right of the parties came in question it could not affect the suit. The best proof of the correctness of the present action was, that the clefts. might have reversed their demurrer ; and, instead of pleading " that they had a right to carry away the water, but no right to displace the soil," they might have pleaded " that they had a right to displace the soil, but no right to carry away the water." The defts. under no circumstances could be injured by the form in which the complaint was laid, because it was competent for the jury to find a separate verdict for each count of the declaration.
The Court overruled the demurrer, and ordered the jury, under the direction of the Deemster, to find a special verdict.
From this judgment the defts. presented their petition of appeal to the Queen in Council, and the pltff. thereupon interposed a petition, stating that no appeal lay in such a case. The Governor ordered the matters to be argued before him, and on the 7th February, 1838, the two petitions were heard,
For the defts., it was argued, that every judgment of the Governor was open to appeal to the Queen. That if the judgment upon the demurrer had been against the pltff,, no doubt he could have appealed ; and it would be exceedingly unjust that one party should have a right of appeal, and not the other. Besides, it was mani~ festly impolitic, if not absurd, to argue that no appeal would lie in a case like this. For as the demurrer and the judgment upon it must, as a matter of course, accompany the rest of the proceedings; suppose, after final hearing, the verdict should be against the defts., and they should appeal from it as well as from the judgment on the demurrer. The Appellate Court might hold the demurrer good in the first instance, and thereby declare that the cause which had been heard ought not to have been tried at all, and both parties would have to encounter the expenses of trying the cause over again.
For the pltff. it was replied, that the situation of a pltff. and deft. under an interlocutory judgment was essentially different, and the reason for refusing an appeal in the one case, and granting it in the other was sufficiently obvious. If a plea, or demurrer, was held good against the pltffs. suit, he was effectually estopped from having the merits of his case tried, so long as that judgment was against him, unless he chose to submit to it, and begin tie novo. But if the defts. demurrer was overruled, he might still defend himself upon the merits, and have the benefit of his demurrer upon an appeal, if the merits were against him. If a deft. was allowed to appeal from every interlocutory judgment he might harrass the pltff. indefinitely. Suppose the case of a fraudulent deft. in Chancery, he might, upon slight cause, demur to the bill specially, then appeal from the judgment made against him ; then plead to the bill specially ; put in an insufficient answer on purpose to have exceptions heard and determined against him ; object to the evidence as taken before the Clerk of the Rolls, and present a special application to have it struck out. In each of these cases an inter-locutory judgment might be made against the deft., as he brought them forward in succession, and if the defts. doctrine were correct, he might successively appeal from every judgment. Could the court entertain such a doctrine ? The point now before the court was strongly contested in the case of Garrett v. Roper. Upon the demurrer being overruled, the deft. presented his petition of appeal, which was actually accepted ; but the pltff. presented a petition to the Governor, complaining of the acceptance of the appeal, and, upon a hearing, the acceptance was rescinded, and the Court decided " that no appeal would lie in that stage of the proceedings." That was precisely a parallel case to the present, and was founded upon previous decisions.
The Court refused the appeal in this stage of the cause.
The defts. after this presented another petition to his Excellency, complaining of his refusal to accept the appeal, and stating, upon behalf of the defts., that " they had prepared and would immediately forward their petition of doleance to the Queens most excellent Majesty, in Council, and that it was requisite all proceedings in the said suit at law should be stayed until her Majestys pleasure in the said matter of petition should be known," and praying that his Excellency would suspend all proceedings in the said suit accordingly.
This petition was also ordered to be heard in open court, and upon the hearing the defts. endeavoured to induce the Court to grant the prayer of the petition, by shewing the singular situation in which the Court and parties would be placed, if upon the hearing the demurrer under the petition of doleance the Appellate Court should reverse his Excellencys judgment, and when the decision should arrive in this Island it was found that the cause had been heard and determined upon the merits in the meanwhile.
For the pltff., it was replied, that the present application was altogether a novel one, and could only be looked upon as an attempt, by holding out something very like a threat, to intimidate the Court into granting that indirectly, which, in the ordinary course, the petitioners had failed to obtain.
The Court dismissed the petition.
27th Feb., 1838.
GENESTE for Pltff. ; DUMBELL for Deft.
This was a suit under a common warrant to recover the amount of an account for goods sold and delivered. The deft. denied that the amount had ever been demanded before the summons was made.
GENESTE, for pltff., claimed to have the pltff. examined upon oath to prove that he had made a demand.
DUMBELL, for deft., objected to the pltff. being examined in his own case. The proof of the demand must be given by an indifferent witness.
Held by the Court, that in the matter of demand it was sufficient for the pltff. to make oath to it.
The pltff. was then sworn and examined accordingly.
25th March, 1838.
DUMBELL for Pltff. ; GELLING for Deft.
This was a suit, brought by warrant, to recover from the deft. the amount of an account for goods sold, and work done to the smack Charles, of which the deft. was one of the owners.
For the deft. it was objected, that he was only one of several joint owners of the boat, and that all of them must be made parties to the suit.
DUMBELL, for the pltff., contended, that it was not the practice to bring all the owners into court ; the pltff. had a right to select the one he dealt with,he might not know the others.
The Court ruled with the deft., and continued the cause to make all the owners parties to the suit.
2nd April, 1838.
DUMBELL for Pltff. : Defts. in Person, and by HAINING and HOWARD.
This was a petition brought by the pitffs., in pursuance of the act of 1817, Mills, 459, and the amendment thereof in 1832, Geneste, 76. The petitioners prayed for an order to apprehend and imprison the defts. until they gave bail to stand trial for a misdemeanour alleged to have been committed by them, in forcibly withholding certain premises from the petitioners.
Two of the defts. moved to have the cause continued on account of the absence of witnesses.
Per Curiam. The petition cannot be continued on any such ground. All that the law requires at present is, that the pltffs. shew sufficient " cause" why I should grant an order to apprehend the defts. We are not now going to try the case. The petitioners must satisfy the Court there is ground to grant an order, that is all that is required. Under the statute of 1817, orders for the apprehension of persons charged with the commission of misdemeanours were issued by the Deemsters out of court, upon the ex parte application of the person complaining, supported by a sufficient affidavit. That act was found to throw a very onerous burthen upon the Deemsters, and in some cases to work injuriously to the accused, and, therefore, by the statute of 1832, sec. xi., it is , enacted, that no order or warrant for the apprehension or imprisonment of any person accused of any misdemeanours shall be granted by the Deemster upon the petition, in the name of a private prosecutor (except in cases of petit larceny) until such Private prosecutor shall have shewn cause, on a hearing in open court, wily such order for the apprehension of the party accused should be granted. Geneste 76.
The petitioners then examined two witnesses, and proved that the petitioners had the possession of the premises up to the time of having been forcibly dispossessed by Wm. Bower. That the petitioners had since obtained a Deemsters order against Bower to be again put into possession of the premises ; that the officer enforcing the order was resisted by force and violence by defts. Hosking and Dixon, the other deft. Haining being by and aiding them by his counsel.
The defts. then called two witnesses, and the pltffs. stated, that although, in strictness, the defts. had no right to go into any evidence under an application where the pltffs. alone were required " to shew cause," yet, if the Deemster would allow it, they would not object.
Per Curiam.If the pltffs. consent I shall not object, but it must not be drawn into a precedent.
The defts. examined two witnesses, who proved some facts as to the conduct of deft. Haining, and his not having resisted by force.
Upon behalf of the pltffs. it was argued, that the evidence was sufficient to entitle them to an order against all the defts. except Walton ; Dixon and Hosking having used actual force, and Haining aiding and abetting them by his counsel and advice.
The deft. HAINING argued, that no proof of force or menaces having been given against him, and the petition not charging him with "aiding and abetting" but with a forcible detainer, no order ought to go against him.
Per Curiam.-A case has been made out against the defts. Dixon, Hosking, and Raining, which is quite sufficient to induce me to grant the usual order. Let the defts. Dixon, Haining, and Hosking, be apprehended and imprisoned until they give security in the sum of £100 each, with two sureties of £50 each, to appear and stand trial when required.
5th April, 1838.
M. H. QUAYLE for Pltff. ; DUMBELL for Defts.
This was an application brought by petition under the following circumstances : The petitioner had sued an action out of the Court of Chancery against T. H. Graham, his tenant, and obtained a decree upon it, for rent due 12th November last. The decree was placed in the hands of the deft. to be enforced against any effects that might be discovered belonging to Graham. Graham held a house from the deft. Dixon, which, in the first instance, he had taken under a written agreement for half a year, to commence 12th November, 1837, and terminate the 12th May, 1838, at the rent of £20. Graham subsequently made a further agreement with Dixon, and took a lease of the same house for a term, to commence on the 12th May, 1838, at the yearly rent of £45. Graham was in possession of these premises, and the deft. Cannell, having discovered effects of Graham there, appraised and sold them, subject to such rent as Dixon might be legally entitled to. Dixon claimed an entire years rent in preference, and the petitioner considered he was only entitled to the £20, payable under the first agreement. This was the issue before the Court.
For the petitioner, it was argued, that the deft. Dixon could only be entitled to a preference for the rent which would become due at the expiration of the first agreement. If the deft. Dixon wanted to take out a Deemsters arrest, he could only obtain it for the rent to become due on the 12th May next, and, therefore, this was the limit of his preference. It was admitted that the statute gave to landlords a preference for one years rent, but that was only where one years rent was running due. Here there was only an agreement for half a year, for the second agreement could not affect the question. The second agreement might never he carried into effect, and under the circumstances of Graham, it was not at all likely it ever would be, in which case Dixon could have no remedy against Graham but by action at law. Graham now holds the premises under the first agreement ; he may never hold under the second, and, therefore, the rent to become due under the first letting, viz., £20, is all that Dixon is entitled to.
For the deft. Dixon, it was argued, that the agreement between Graham and Dixon was, in fact and substance, an agreement to pay the rent half yearly, and the years rent would therefore run from the 12th November to the 12th November. The law said that the Coroner, before he levied an execution, must pay the landlord one years rent, and that without any reference to the time when payment was to commence. The parties might fix any time they pleased. In this case the rent commenced on the 11th November, and one years rent, according to the statute, would, of course, run up to the 12th November following.
The Court decreed that the deft. was only entitled to half a years rent out of the goods sold by the deft,, viz., the rent running due under the first agreement.
6th April 1833.
QUIRK, jun., for Puff. ; DUMBELL for Deft.
This was a petition brought by Kermode, a principal creditor, to have an administrator appointed to the estate of James Kelly, jun., who died intestate and unmarried.
DUMBELL appeared for James Kelly, sen., an~l stated that, as the father and next of kin of the deceased, he was entitled to administration to his sons effects, but, being an old man, he wished to appoint his own friend, Thomas Lace, of Sarsfield, to be administrator in his place, which he contended, as an established point of practice, he had a right to do.
The petitioners advocate did not deny the practice, provided sufficient bail was given in, but unless the pledges were sufficient the Court would appoint a proper person to administer, as there were considerable claims upon the estate.
The petitioner having produced two good and sufficient bails, to the satisfaction of the Court, the usual bonds were entered into, and Thomas Lace, of Sarsfield, as recommended by the petitioner, was duly sworn to administer to the estate of the deceadant,