[from Advocate's Notebook, 1847]
24th April, 1838
DUMBELL for Deft.
This case was brought by a petition, in which it was stated that the petitioner had been bound apprentice to the deft., for five years, to learn the trade of a bookbinder. That the deft. had bound himself, his executors, and assigns, to teach the petitioner. That for the first year the said Jane Caren was to find the petitioner in meat, lodging, washing, &c., and the remainder of the term the deft. was to pay the petitioner board wages. That the petitioner had duly served the first year of his said apprenticeship, but that the deft. had refused any longer to teach him, and had discharged him from his service. The petition therefore prayed that the deft might be ordered to take back the petitioner into his employ, and to teach him his trade, or that the deft. might be ordered to enter into bonds in the Rolls Office, with sureties to the amount of the penalty mentioned in the indentures, that he would, in terms thereof, teach the petitioner ins trade.
DUMBELL, for the deft., objected to the suit being heard, upon the ground that it was not in the power of the Court to grant the prayer of the petitioners application. The Deemsters Court had no authority to order a master to give security for the teaching of an apprentice. It was the known interest of the master to do so, and this was held to be a sufficient guarantee for the purpose. But if a master neglected his duty, the apprentice was not without a remedy, but he was not entitled to redress in the manner prayed for. He did not admit the petitioners statements, but objected in Loeiiie to the cause being heard in its present shape.
For the petitioner, it was argued, that it had always been the practice for the Deemster to interfere in matters of this kind, and to order a master to take back his apprentice, if improperly discharged, and to teach him his trade. That the records would furnish many instances of masters entering into bonds at the Rolls Office, in pursuance of the order of a Deemster, to comply with the terms of the indenture . That if an apprentice absconded from his master, the latter had only to make an ex parte affidavit of the facts,and the Deemster, as a matter of course, issued an order to imprison the apprentice until he entered into bonds, with sureties, to serve his master in terms of the indentures, and the apprentice ought to have at least as satisfactory a remedy against the master. The DEEMSTER heard the cause, and evidence being adduced in support of the petitioners case, the Court ordered the deft. to take back the petitioner John, to cause him to be taught his trade in terms of the indentures, and to pay costs.
STEPHEN and QUIRK for Applnt. ; QUIRK Attorney-General and DUMBELL for Respndt.
This was an appeal from the judgment of Vicar-General Hartwell.
The applnt. in the court below sought to obtain an order against the estate of the deceased, for the sum of £100, the amount of all execution obtained by the applnt. against the deceased in his lifetime.
The respndt., the deft. in the court below, insisted upon the examination of the pltff. on oath, but he being an old man and his wife conducting the business, she was examined in place of her husband, and the Vicar being dissatisfied with the statement elicited from her upon oath, refused to grant an order, but referred the case to a jury.
From this judgment the pltff. appealed, and now argued, that the Vicar had no right to suffer any evidence to be gone into concerning the Deemsters judgment, but was absolutely bound by it, and could only compel the pltff. to answer on oath whether the whole or any part of the execution had been paid since the granting of it.
For the respndt. it was argued, that the applnts. wife had when examined before the Vicar-General upon oath, disclosed such facts as raised strong doubts as to the justice of the alleged demand. It was a peculiar privilege of the Vicars Court that, on account of the impossibility of an administrator being well acquainted with all the affairs of the deceased, every pltff. suing an administrator was bound to submit to an examination upon oath, at the bar of the court, that the administrator and Court might be satisfied that pltffs claim was just.
Upon the part of the applnt. it was admitted that the administrator of a deceadant had a right to the satisfaction of the pltffs. oath ; but in the case of a judgment of another court only one question could be asked, viz., whether the whole or any part of the judgment had been discharged ? But the Ecclesiastical Court was bound to suppose the judgment was properly granted by the temporal court, and had no right whatever to inquire into the particulars of the execution.
For the respndt. it was replied. that the applnts. wife had been permitted by her advocate to answer the questions put to her until she had made such disclosures as justified the Vicar-General in referring the party to a jury. It was not until the applnts. advocate found the nature of her admissions, that he stopped her from answering any other questions.
The Court reversed the Vicars judgment, and granted an order for the amount of the execution.
NOTEThere was a minute entered on the Court Minute Book" No relief against the judgment of a court except in equity."
7th May, 1838.
DUMBELL and HOWARD for Pltff. ; BLUETT for Defts.
Suit to have a Trespass Jurys verdict received.
Objected, for defts., that the question raised before the jury was triable only at Common Law. It was a question of a right of way, and defts., therefore, contended, that the verdict ought not to be received, and the proceedings ought to be quashed.
For Pltff. it was alleged, that even if the clefts. had any right of way, it must be confined to some place in particular ; but the defts. had been trespassers in various places, and, therefore, the jury had a right to go into the case. Pltff. submitted, that if any objection lay to the form of the proceeding, and to the verdict being received, the defts. application must he brought specially by petition, and could not be entertained now but by pltffs. consent. The invariable practice was to bring such applications by petition.
For defts. it was alleged, that, where it was evident upon the face of the proceedings the matter was not cognizable before the jury, the Court had, in many instances, quashed the proceedings at once. In the present case it would appear upon the face of the depositions that there had been a right of way, over the premises charged to be trespassed upon, for the last forty years.
Per Curiam.If warrants have been quashed as stated, it must have been by consent of the Pltff. ; but the practice is, to bring the application by petition, the parties then having due notice to defend it, I will receive the verdict, and retain it, that the defts. may have time to bring a petition, if they think fit, stating the special nature of the objection upon the petition.
21st May, 1838.
On this day, the defts. to the foregoing suit brought their petition as directed, stating, that as the matter at issue between the parties involved a question of right of way, it was properly cognizable before a jury at Common Law, and not before a Trespass Jury, and praying that the,proceedings might be quashed.
DUMBELL, for the deft Freer, stated, that he had looked into the depositions, and found that there was evidence sufficient to raise a question of right of way, and, therefore, he should offer no objection to the pltffs. application.
Per Curiam.Let the proceedings be quashed, without prejudice to the pltff. in the original cause proceeding at Common Law if he shall be so advised.
18th May, 1838.
HARTWELL, V. G.
STEPHEN and QUIRK for Pltff DUMBELL for Defts.
This was a suit, by petition, under a transmission out of the Court of Chancery, to recover from the defts., as bail for William Spencer, the usual sum allowed for the lying in expenses of his illegitimate child.
It was alleged in the petition, that William Spencer, the principal, was off the Island ; and the petition prayed that an order might he granted against " the said Robert Spencer, sen., and Robert Spencer, jun., for the sum of £3 British the said William Spencers share or moiety of the expenses which attended the birth of the said child."
DUMBELL, for the deft., objected, that William Spencer, the deft. in the original action, was not made a party to the present suit.
For the petitioner it was argued, that the defts. now before the Court had made themselves answerable in default of Wm. Spencer. That Wm. Spencer, by quitting the Island, had committed default, and as they could not bring him into court, it was not necessary to make him a party.
DUMBELL, in reply, fully admitted that the said Wm. Spencer was off the Island, but contended that if the real deft. had been made a party with the two bails, they would have appeared and defended the suit for him, and the judgment would have been granted against Wm. Spencer, the real deft., and, in his default, against the bails, the present defts.
The VICAR-GENERAL said that he would take time to advise upon the subject, and give his judgment another day. Subsequently the Court gave judgment against the bails as prayed for in the petition, with costs, the Court holding, that service on the bails was sufficient, the principal being off the Island.
8th June, 1838.
HARTWELL, V. G.
DUMBELL for Pltff. ; HARRISON for Defts.
This suit was brought to establish a claim against the estate of Thomas Quayle, deceased, of which estate the deft. was administrator.
DUMBELL, for pltff., moved to be allowed to examine the administrator as a witness.
HARRISON objected to his client, as deft., being examined as a witness.
DUMBELL, for the pltff., contended, that, though deft, in the suit, he had no personal interest, as he was merely administrator in trust, for the benefit of creditors, but if even the deft. were himself a creditor, the pltff, if he thought proper, might wave the objection to his interest, and examine him.
The COURT.If the deft. has any interest at all, it must be adverse to that of the pltff., but if, notwithstanding that, the pltff. chooses to examine him, I see no objection to it, therefore let him be examined,
18th June, 1838.
STEPHEN and QUIRK for Pltffs. ; BLUETT for Deft.
This was a suit by common warrant. The pltff. C. Karran, in his capacity of Lockman, had arrested in the hands of the deft. a sum of money due by her to Wm. Moore, against whom he held an execution in favour of the pltff. John Karran. The object of this suit was to have the deft. examined, upon oath, as to the amount due by her to Moore.
For the deft., it was admitted that she must attend to give her oath, if required, but, in this case, the deft. did, in reality, owe nothing to the said Moore, having, previous to any arrest being laid upon her by the Pltff., passed her promissory note to Moore, who had endorsed it to a third party, who was now seeking to recover payment of the note from the deft., but she was unwilling to pay the money until the arrest in question was removed.
Upon these facts being proved, the suit was dismissed.
29th June, 1838.
HARTWELL, V. G.
M. H. QUAYLE for the Pltffs
Upon application, by petitioners, to have probate granted of the will of Mrs. Mary Mearns, deceased, it was stated, that the death had taken place during the week.
The VICAR-GENERAL said he doubted whether he could grant probate, on account of the recent death of the testatrix, which was a shorter time than that pointed out by the statute.
QUAYLE, for the petitioners, said that in the clause of the statute of 1777, which stated, " that no letters testamentary, for probate of any nuncupative will, should be granted by the Court until fourteen days, at least, after the death of the testatar be fully expired," the words " letters testamentary" were always construed to refer to letters of administration, and not to a will.
Several members of the bar having concurred in this construction of the statute, the Court allowed the will to be proved.
Common Law, 3rd July, 1835
VAUGHAN WALDRON v. JOHN STEPHENSON.
DUMBELL for Pltff. ; QUIRK and STEPHEN for Deft.
This was the second court. A commission had been moved for and obtained last term, but was not yet returned, and the pltff. now moved for a continuance.
QUIRK, for deft., objected to a continuance, upon the ground that, upon the usual petition being presented to the Governor, an order had been obtained for the pltff. to give security for costs before proceeding further in the cause. That no such security had been given, and the pltff. not having complied with the order of the Court could not be allowed to proceed with the cause.
DUMBELL, for pltff., replied that no such order had been served upon him as pltffs. advocate.
QUIRK, for deft., contended that it was enough for deft. to shew that such an order was granted. It was granted upon a hearing, and the pltff. was bound to take notice of the order of the Court without any service of it afterwards.
DUMBELL stated that the pltffs. advocate was entitled to have the Governors order duly served upon him, and after such service he is entitled to one continuance, in order that he may have time to communicate with his client.
Per Curiam.The pltff. is not bound to take any notice of the order until it is served upon him, and then he has a right to continue the cause, for one term after the service, that he may have time to provide the required security.
CHANCERY COURT, 5th July, 1838.
M. H. QUAYLE for Pltff.; J. C. STEPHEN for Deft.
This was an application, by petition, upon the part of the deft. in the original suit, to have a common action quashed.
It appeared that the petitioner had purchased a house from the pltff. for the sum of £900, no part of the consideration money was in fact paid, but there was a prior mortgage upon the premises for £360, and a bond was passed by the petitioner to the Pltff. for the balance, viz., £580, with security upon the purchased premises. The bond was made payable on the 12th May next ensuing the date of it, but the petitioner having made default in the payment of the money at the time appointed, the Pltff. took out an action of arrest against the deft. and imprisoned him.
For the petitioner it was contended, that the action must be quashed ; first,because the deft., by virtue of his purchase, had become " a landed man," and the statute of 1777, Mills, 372, exempted all such from arrests. That the purchase of a house necessarily involved the purchase of land, and as the statute did not limit the extent, it followed that the proprietor of any quantity was essentially " a landed man" therefore, within the meaning of the statute and consequently not liable to arrest. Secondly.That the Pltff. had been content to take, and still held, security upon the defts. property for the payment of his debt, and had, therefore, no right to seek another security, by the arrest of the defts. person. Thirdly.That the law of arrest was only intended as a protection to residents against strangers, who, having no property at stake in the country, might contract debts and then depart the same ; but the deft in the present case was both the owner and occupier of a house in which he carried out his business and upon the improvement of which he had laid out a large sum of money thereby increasing the value of the pltffs. security . That at any rate, in such a case, the Pltffs. affidavit ought to state some special circumstances to justify the arrest, such as that the deft, had obtained " the Governors pass," or other reason why he apprehended he was going to leave the Island.
For the Pltff. it was replied, that merely having obtained a title deed of a house and possession of it, without having paid one farthing of the purchase money, was not sufficient to constitute such a purchaser " a landed man" within the meaning of the act. That as to the " security on defts. property," it was upon the house purchased and if compelled to revert to it, it would virtually be annulling the sale, and compelling the pltff. to take back his property to a disadvantage. That as to the deft. " carrying on his business in the town," he did so in the pltffs. house, for which he had paid nothing, and as to his business, he kept a house of ill-fame, which he might abandon at any moment, and throw the house on the pltffs hands, which so far from being " improved" was much injured by his alterations, and still more in its character.
Per CLERK of the ROLLS.What do you consider a landed man?
M. H. QUAYLE.A proprietor of land paying not less than £3 lords rent. It was so settled in the case of Wade of Ingebreck.
Per CLARK of the ROLLS.That was not the first case in which it was settled.
STEPHEN.In point of law, " a house" is equivalent to land, for under the term "land," houses pass.
Per Curiam.Does the deft. admit a decree for the amount actioned for?
STEPHEN.Certainly not. The pltff. may take the ordinary course by suing for an execution in the Deemsters Court ; but, he contended, the deft. was not liable to arrest under the circumstances, and not at all without special cause being stated on the face of the affidavit.
By the judgment of the Court the petition was dismissed.
NOTE In the Court Minute Book it is written, " Is the deft. a landed man ?" It would appear, therefore, the court took special notice of this point, and by dismissing the deft's petition, decided in the negative.
9th July, 1838.
LAMOTHE for Pltff. ; CLUCAS for Deft.
Petition to have a jury empannelled to view the state of the premises, let by the pltff. to the deft., and to report to the Court, and that deft. might be ordered to repair.
The statement in the petition was, that the deft. had allowed a drain or sewer, along the foundation of the house and upon the premises demised, to waste and injure the building ; and that the cause of such damage continuing, tended to the waste and ruin of the premises. The petition also contained a general charge of waste, actual and permissive.
The pltff. had granted a lease to the deft., the term of which was still unexpired ; but the deft. had sublet to a yearly tenant. By the lease to the deft., he was bound to "keep and maintain the premises in good order and repair.
CLUCAS, for deft., objected. First.That an application to the Deemster for a jury, or for repairs, cannot be maintained. There is no right reserved by the lease to the landlord to enter and view the premises during the term. Secondly.A jury cannot be brought on the premises ; they are in the possession of a third per-son, who is no party to this suit ; nor is he in privity of estate, as he holds from the deft. by parol, and not by assignment of the term. Thirdly.The sub-tenant is the person to be sued, if any, and not the deft.
LAMOTHE, in reply.Although there is no express reservation of a right to enter and view the state of repairs, the Court would restrain actual waste, such as here alleged ; it is not the case of ordinary repairs which may well be redressed at the termination of the lease, but it is a case of waste tending to the immediate ruin and destruction of the premises. This Court exercises many of the remedial and preventive functions of a Court of Equity, and no case can be more proper for its sumillary interference than the present. As to the second point, the sub-tenant may have a right to oppose the entry of the jury, but that objection will not arise until they seek to enforce the order, and then he will have an opportunity of shewing cause against it ; but, meantime, our right is against our immediate tenant. the answer to the third objection is similar; the sub-tenant is for the present a stranger to us, our relation is with the deft. by means of the covenant.
Deemster the statement well founded in fact, you must adopt some other remedy ; I think I have no jurisdiction during the term of the lease.
Petition dismissed, but without costs.
30th July, 1838.
J. C. BLUETT for Pltff. ; M. H. QUAYLE for Deft.
This was a suit, brought by petition, complaining that the deft. had taken in the pltffs. cow to graze at £3 l0s. British, for the season. That he had since over-stocked the land, and there was not sufficient grass for the Pltffs. cow, and praying for a jury to view the premises, and report upon the state of them.
Upon the part of the deft. it was alleged that the grass was sufficient.
Per Curiam.The jury will decide the fact between the parties by their report, but I must have some evidence to shew there is good ground for the application.
A witness was then examined for the Pltff., but failing to prove the insufficiency of the grass, the petition was dismissed with costs.
CHANCERY COURT, 2nd Aug., 1838.
DUMBELL for Pltff. ; QUIRK and STEPHEN for Deft.
This was a petition to have the deft. ordered to allow petitioner to quarry stones in a certain part of the Howe quarry.
It was stated for the petitioner that both the pltff. and deft. had paid Capt. Heywood, the proprietor of the land in which the quarry was situated, the usual amount for surface damage, and a parcel of land had been marked out for each of them. Subsequently, the deft., in order to secure himself a greater range of quarry for the future, had purchased from the proprietor a further strip of land, running completely at the back of the Pltffs. quarry. Thorburn marked out his part of the quarry, and wanted to go further back, but finding, on application to Capt. Heywood, that Lawson had purchased the land, he tendered the price to him of so much surface as he fancied he might require to displace in quarrying further back. The deft. however refused to receive the money, or to let the petitioners work-people enter the quarry, and the petitioner was therefore obliged to apply to the Court for the usual order for a jury.
For the deft. it was alleged, that the petitioner had no occasion to bring the suit, as he had a quarry close to where he was building, whereas the one in question was nearly two miles off. The statute stated, that " stone" was for the use of " neighbours" and therefore if the petitioner had a quarry near his own place, as the fact was, he had no right to disturb the deft. in the enjoyment of what he had fairly purchased.
The CLERK of the ROLLs.The word " neighbour" is not construed as you put it.
For the Pltff. it was replied, that the word " neighbour" had not the limited sense applied to it by the deft. That a party had a right to go wherever he could get the best stones, without reference to the distance. With respect to the deft. having purchased the surface, he could be in no better condition than the original proprietor, who would be compelled to allow petitioner to quarry ; but the deft., by purchasing the surface behind the petitioners quarry, thought he could have driven the petitioner out of the quarry and monopolised it all to himself.
The Court directed that a jury should be convened upon the prernises to mark out the land required by the petitioner, and estimate the value of the surface that would be removed.
7th Aug., 1838
QUIRK, jun, for Applnt. ; DUMBELL for Respndt.
This was an appeal from Deemster Heywoods judgment dismissing the applnts. petition in the court below.
The petition stated, " that a dog, the property of the deft., was set at the petitioner by the deft. ; that the dog seized him, threw him down, and severely bit him and cut him in different parts of his body ;" and the petitioner prayed " that the said William Cal-low might be fined and imprisoned according to law, and ordered forthwith to destroy the said dog, or that the said dog might be ordered to be forthwith destroyed."
Upon the hearing, witnesses were examined, and the Deemster dismissed the petition.
The applnt. sought to have the appeal heard upon the merits; but the respndts. objected us limine to the cause being heard, upon the ground that it was not a matter open to any appeal.
For the appint. it was argued, that jurisdiction, in cases like the present, was given to the Deemster by the Act of Tynwald, 1758, Mills, 333, and there was nothing in that statute to prevent an appeal being brought from any judgment made under it, the same as in any other matter.
For the respndt. it was alleged, that if an appeal would lie in this case, appeals might be brought in every matter of assault and battery, and breach of the peace. The jurisdiction was solely in the Deemster, and the act gave no right to appeal.
The Court decided that an appeal did not lie.
BLUETT and DUMBELL foo Pltff. ; KELLY for Deft.
This was a petition. brought by the deft, Ingiis.to have the pltffs action quashed.
It was alleged for the petitioner, that the Pltffs. action was improperly taken out for rent, which was to become due on the 12th November next, under an assignment of a lease to the deft., and which had been granted by the pltff. to a third party. The rent not being due, as alleged, the petitioner contended that no suit could be instituted for it, and that the action must be quashed.
BLUETT and DUMBELL, for pltff., submitted, that this application, though brought by petition, was, in fact, in the nature of a demurrer to the pltffs action, and could only be supported by the facts appearing upon the face of the pleadings. the allegation made by the deft. was, that the action was taken out for rent t become due on the 12th November; this was a gratuitous assumption not supported by the pleading ; for, upon referring to the affidavit, it appears that the words were "for the balance of an account, and for rent due." It does not say rent to become due ; therefore, there being nothing on the face of the pleadings to shew the action was improperly sued out, the present application must be dismissed, and the pltff. was entitled to obtain a transmission, for which he now moved.
For deft.A receipt for the last years rent was offered, to shew that no rent was due at the time of the action being sued, nor until next 12th November.
The CLERK of the ROLLS.It is not denied that an action of arrest cannot be taken for rent not due, but whether due or not is a question to be determined on the merits.
NOTE.Upon the hearing of this cause afterwards upon the merits, in the Deemsters Court, it appeared that the parties had come to a settlement of all accounts, including the rent, before the action was sued out; and that the suit was, in fact, for the balance of the account so stated and settled, and the pltfif recovered judgement for the amount, with costs.
COMMON LAW, Nov., 1838.
GREAT INQUEST of GLENFABA.
QUIRK, Acting Attorney-General.
The ATTORNEY-GENERAL stated, that the Great Inquest of Glanfaba Sheading had a return to make upon a licence granted by the Crown to Margaret Kermode.
The return being handed to the Deemster, he read it aloud to the Inquest. The return was as follows : We, the Great Inquest of Glenfaba Sheading, whose names are subscribed, having been convened by his honour Deemster Heywoods order to view a parcel of common, on the 3rd June, 1838, mentioned in the licence granted to Margaret Kermode, widow, bearing date the 4th March, 1834, did give as our verdict, that it was not prejudicial to turberies, but that it was injurious to Philip Fargher, as regards water and right of road, but that the said Philip Fargher did, by agreement dated the 4th June, 1838, and which is annexed hereto, give up all right to said road and water ; therefore we give it as our verdict, that it is not prejudicial to turberies, roads, and watercourses, although, in other respects, it is prejudicial to the public. And this we give as our verdict on the 14th day of September, 1838"
KIRK PATRICK. KIRK GERMAN.
John Clarke, his x mark, William Quay, his x mark,
Leece Clucas, Charles Quay, his x mark,
Samuel Collister, his x mark. Thomas Quay,
Nathan Pickle. [fpc - Methodist ironmonger in Peel - buried Athol St Methodist Chapel grounds]
William Caine, John Caine,
Joseph Cretney, William Caine.
It appeared, that a licence had been granted in the usual manner, and that a petition had been presented by the intended tenant to the Deemster, praying for his Honours order to the Great In-quest to appear on the premises, view the same, and make their report. The order was granted accordingly, and the Grand Inquest, having viewed the premises, now brought in their report.
Upon its being read, BLUETT, advocate, craved leave, with the indulgence of the Court, to call its attention to the concluding words of the report, which, he submitted, were words the Great Inquest had no right to introduce. The return stated that " the licenced inclosure was not prejudicial to turberies, roads, and watercourses." This was correct ; but the return then went on to state " although in other respects it was prejudicial to the public." He was not employed to appear in this branch of the case, though retained for parties interested in the property. He was also aware that very important questions might soon be discussed concerning the waste land, and it was of great consequence that returns should not inadvertently be permitted to creep, as it were, upon the record, which might hereafter be quoted as important precedents. The Great Inquest had only to report whether the inclosure was prejudicial to the public as to turberies, ways, waters, and watercourses ; but they had gone further, and the additional words were beyond their duty. The present return was also insufficient as only eleven members of the Great Inquest had signed it.
Per Curiam.The return of the Great Inquest must be in accordance with my order on the petition. I cannot, therefore, receive the return until I have the petition before me.
BLUETT suggested, that, as the Great Inquest were in court, they might, perhaps, be induced to strike out at once the words objected to, and then the return might immediately be received.
To this suggestion one of the Inquest observed, " that which is done is done, and cannot be altered."
Per Curiam.I can only receive your return with the petition on which it was made. I will, however, hold over your return until that is handed in.
NOTE.The twelfth Inquest-man subsequently refused to sign the presentment, and therefore it fell to the ground.
30th Nov., 1838.
HARTWELL, V. G.
DUMBELL for Pltff. ; BLUETT for Defts.
The defts. advocate, upon this cause being called on, objected to the suit proceeding until the Pltff. shewed his authority to bring any suit against the defts.
For Pltff. it was replied, that the Court had judicial knowledge of the fact of the Pltff. having been sworn administrator. He was, in truth, the officer of the court. The object of the present suit was to discover the effects of the deceased which had been taken away, and it was clearly for the benefit of all parties that these suits should proceed, otherwise the property might be wasted or made away with.
For deft. it was alleged, that it was not sufficient for the Court to have judicial knowledge of the fact. The party sued had a right to know by what authority the pltff. brought the suit ; and the proper evidence of his authority was the production of the office copy of the letters of administration. This the defts. had a right to demand, and unless the Pltff. produced it, he had no right to proceed. The Court overruled the objection, and stated that it was highly important the effects of the deceased should be secured, and therefore the pltff. might proceed.
3rd Dec., 1838.
HARRISON for Pltff. ; KELLY for Deft.
The suit was brought by the pltff. to recover the sum of £6 8s. 6d. the amount of the defts. promissory note, with interest.
The deft. alleged that the note had been passed for the amount of a tippling debt, the recovery of which was barred by the statute, and passing the note could not alter the nature of the debt.
Per Curiam.If the consideration was illegal the note cannot be recovered.
KELLY, for deft., submitted, that the onus fell upon the pltff. to prove the consideration for the note.
Per Curiam.Certainly. Let the cause stand continued for that purpose.