[from Advocate's Notebook, 1847]
CHANCERY COURT, 6th Dec., 1888.
QUIRK, jun., and DUMBELL for Pltff. ; QUIRK sen., and BLUETT for Deft.
This was a petition by the deft. to have the action in the original cause quashed under the following circumstances : The ATTORNEY-GENERAL, for deft., stated, that the Pltff. Corlett had taken out an action against the deft. to hold him to bail in the sum of £100, to answer a suit at law for defamation. The deft., upon being arrested, gave bail for his personal appearance to avoid going to gaol, and then presented a petition to the Governor to have the amount of the bail reduced ; and the Court, upon hearing that petition and arguments of counsel, reduced the bail to £10. Subsequently the action was transmitted, and the cause brought on at Common Law, when the jury gave a verdict for £40. Immediately after this verdict, the Pltff. sued out a second action for the sum of £30, the difference between the verdict and the sum to which the Court had reduced the damages ; and it was submitted that no such action would lie. The deft. had appealed from the verdict of the jury, and had given bonds to prosecute the appeal. It was contended that the appeal stayed every proceeding, and left things in the same state, for all legal purposes, as before the verdict was given.
QUIRK, jun., and DUMBELL, argued that the application must be dismissed. The pltff. had taken out his action for such damages as he considered himself entitled to. The Court had reduced the bail to £10. Upon the trial of the cause, the jury, having the whole cause before them, decided by their verdict that the Pltff. was entitled to £40 ; but, by an act of the Court, the pltff. had only security for a part of this sum, viz., £10, and therefore the Pltff. was compelled to take out a second process to obtain bail for the difference. This was according to former practice, as in the case of Ritchie v. Bluett, and Froude v. . As to the bail given for the prosecution of the appeal, it was only nominal, and was at any rate no security for damages at Common Law.
BLUETT, for pltff.The entire process of arrest and holding to bail is in the discretion of the Governor, and he will either grant or withhold his process according as he is satisfied, or otherwise;and he has, in like manner, a right to reduce the bail given if he sees fit. In this case, supposing the Pltffs. statement to be true, the Court reduced the bail. The very fact of the jury having given damages beyond the amount of the reduced bail is no sufficient reason for the Court to alter its determination when there is an appeal, and the case of Ritchie v. Bluett was a bad precedent ; for, in that case, it was true a second action was taken out, but the deft. made no resistance to it, and what was the result ? He was imprisoned for seven months under the second action, until the Appellate Court reduced the damages from £500 to £50, and the deft. was immediately discharged.
By the decree of the Court the second action was dismissed without costs.
6th Dec., 1838.
KINLEY and DUMBELL for Pltff. ; LAMOTHE and CORLETT for Deft.
Upon this cause being called over upon the list by the Clerk of the Rolls, the pltffs advocate moved for a transmission, upon production of the action, return of effects arrested, and certificate of the deft. being summoned.
LAMOTHE, for the deft., objected to a transmission, upon the ground that the Pltff. had already got a judgment in the Deemsters Court for the same debt for which the action was taken out.
KINLEY, for the pltff., admitted that there was a Deemsters execution for the debt, but it cõuld not be enforced at the time the action was taken out, the deft. having refused pawn, and left the Island before a contempt could be enforced, but as the deft. now appeared by Mr. Lamothe, he should move that the cause be set down to be heard.
This rule was accordingly entered, and the cause was set down to be heard at the next ensuing court.
11th Dec., 1838.
This cause came on to be heard this day on the merits, the facts of the case being admitted by the deft.
It appeared that the deft. held certain lands from the Pltff., who, fearing to lose his rent when it would become due, took out the usual Deemsters arrest, and thereunder secured the effects found on the premises. To this arrest bail was given. Afterwards, when the rent became due, the deft. was sued for it, and the Deemsters execution was obtained for the amount. The execution was put into the hands of the Coroner to be enforced, but the deft. refused to deliver pawn upon it, and before the usual contempt could be obtained and enforced against the deft. he fled from the Island. The pltff. being, therefore, unable to derive any benefit from his execution, immediately sued out his action of arrest from the Court of Chancery, and thereunder arrested the same goods as had previously been taken under the Deemsters arrest and bailed. To this action the deft. had now entered an appearance, and the Pltff., therefore, contended he was now entitled, upon production of the execution, to obtain the decree of this court for the amount of the execution with the costs of the action ; the judgment to be enforced against the effects arrested.
CORLETT, for the deft., contended that this action could not be maintained. The pltff. had already obtained the judgment of a competent court for the amount of his debt, and he had no right to obtain two judgments for the same debt. There was no evidence before the Court to show that the contempt might not have been enforced, and the deft. would then have been imprisoned under that process, instead of being subjected to this action. The deft. was a native of this Island, and, as such, he was not liable to be arrested. It was true that he had left the Island for a short time on his lawful business, but with no intention of quitting it altogether, as his present return had proved. The writ of contempt, already against the deft., might now be enforced, and the deft. be imprisoned under it, for the present action was no bar to such a proceeding. The deft. ought not to be subjected to have two such processes running against him at the same time, and, therefore, he submitted that this action ought never to have been sued out, and ought now to be dismissed. Pltff. had ample security for his rent under the Deemsters arrest, and the bail given for the effects arrested, or, at the farthest, if the Court should feel disposed to grant a decree in favour of the Pltff., deft. submitted that, under all the circumstances of the case, it ought to be without costs.
DUMBELL, for pltff., contended that the deft. had, by his conduct, compelled the pltff. to adopt this course as the only one by which he could get his money. Where an execution is placed in the Coroners hands, if the deft. gives pawn upon it, then the Coroncr may enforce it against the effects arrested ; but here the deft. actually refused pawn, and fled from the Island before any process of contempt could be obtained and enforced against him. The Pltff., therefore, was no better off for his judgment, it being impossible to enforce it. He had, therefore, no other means of redress but by the aid of this Court. The pltff., in his affidavit to ground the action, stated these facts, and they were sufficient to induce the Court to grant the process of arrest required. Had the deft. chosen to remain off the Island, the four courts would have run out, the pltff. would have made oath to his demand, and the Court would have granted its decree to be enforced against the effects arrested, and no delivery of pawn would be necessary. That he refused pawn on the execution and fled before the contempt could be obtamed, were facts admitted, and they fully justified the suing out of the action as the only means of getting the Pltffs. money, and, therefore, he claimed to be entitled to the decree of the Court, with costs.
COURT MINUTE.Decree for the amount of the execution, with costs to be taxed.
17th Dec., 1838.
GELLING and DUMBELL for Pltff.; HARRISON and BLUETT for Deft.
This suit was brought by warrant to obtain the Deemsters order for the deft. to deliver twenty bolls of potatoes, at seventeen shillings per boll.
It was proved in evidence that the deft. had agreed to deliver twenty bolls of potatoes at that price, and that he received one penny earnest. That a short time afterwards, the deft. came to the pltffs. house and wished him to take back the earnest and give up the bargain, but the Pltff. refused. The deft. then threw down the penny and left the house. Upon this evidence, the pltff. moved for his Honours order, as prayed for.
The deft. admitted that the original agreement was made, as proved by the witnesses, but alleged that it was subsequently abandoned by a new arrangement between the parties, when there was not any witness present, and deft. left this point to the pltffs. oath.
The pltff. was accordingly sworn and examined, but denied that he had ever given up the bargain.
For deft., it was then argued, that the pltff. had no right to obtain an order for the delivery of the potatoes, which, in point of fact, the deft. could not comply with, as the deft. had no potatoes to deliver. The pltff. had no doubt a right to redress at Common Law by an action for damages for the nonfulfilment of the defts. agreement, but not to an order for a specific performance.
DUMBELL, for pltff.The deft. had plenty of potatoes at the time of making the bargain, and could now, very easily, get plenty more. The delivery of a penny is a symbolic delivery of the property, which from that moment was the pltffs.
For deft.The delivery of the penny is a good delivery of part of the price, and sufficient as earnest to bind the bargain ; but to constitute a delivery of the article sold, the deft. should have delivered a potato.
Deemster HEYWOOD.For the seventeen years that I have been Deemster similar orders have always been granted. The delivery of earnest binds the vendor to a delivery of the goods sold, and the property is from that moment the property of the purchaser. I must, therefore, grant my order against the deft. to deliver the twenty bolls of potatoes.
20th Dec., 1838.
KELLY and BLUETT for Pltff. ; GELLING for Deft.
This was an application, by petition, to have a new trial at Common Law, upon the ground of want of direction by the judge.
The suit was brought at Common Law to recover possession of certain houses and premises. The deft. proved in evidence that he had no title to the premises, except in right of his wife, whose title he proved, and moved that the pltff. should be non-suited. Defts. wife not being a party to the suit, the Deemster overruled the objection ; the cause proceeded, and Pltff. obtained a verdict for one half the premises ; the petitioner now moved to have the verdiet set aside, and a nonsuit entered.
Deemster HEYWOOD.The Deemster cannot nonsuit a pltff. if he chooses to go to the jury against the declared opinion of the judge.
CLERK OF THE ROLLs.If the proper parties were not before the Court, they cannot in any way be affected by the verdict.
New trial refused.petition dismissed.
24th Dec., 1838.
STEPHEN and QUIRK for Deft.
This was a suit brought by petition to have the deft. imprisoned under a jurys return of no effects to discharge an execution.
Objected, by the deft., that the execution was granted by the Governor, and that the suit was improperly brought in this court, and, therefore, he moved that the petition be dismissed with costs.
Dismissed with costs accordingly.
CONSISTORIAL COURT, 1839.
KINLEY for Pltff.
Petition of the mother of James Crellin, deceased, stating, that he had died abroad, and that in order to obtain administration to his estate, it was necessary to shew a certificate of the birth of the deceased. That, upon referring to the parish register, it appeared, by some mistake, the mothers name was entered as Jane Sayle instead of Margaret Crellin, and the petitioner prayed that, upon sufficient proof being given, the Court might be pleased to order the registry to be amended.
Evidence was then given to prove the birth of the child eighteen months after the marriage of the petitioner with his father, and also of the christening of the child, by persons present at the time.
Upon the arguing of the petition, the case of Philip Garrett was stated, in which, after a lapse of years, it was discovered that two of his children, although christened in the church, had not been registered. Evidence was given in that case of the marriage of the parents, the birth, and christening of the children, and the Court upon this evidence ordered their baptism to be registered.
The Court, upon the evidence adduced, ordered the register to be amended, by altering the name of the mother from Jane Sayle to Margaret Crellin, the real name.
25th Jan., 1839.
HARTWELL, V G.
ATTORNEY GENERAL, STEPHEN, and QUIRK, for Pltff ,BLUETT and DUMBELL for Defts.
The pltff. presented a petition to have an administration appointed to the estate of John Skillicorn, deceased, pendente lite.
John Skillicorn, the petitioners husband, had made a will appointing the petitioner his executrix. The defts., as next of kin of the deceased, resisted the proof of the will, and the matter was referred to the Registrar to take evidence.
The present application was to have an administrator appointed to collect and take care of the effects of the deceased pending the suit to establish the will ; and the pltff. now moved to be sworn administratrix herself.
For defts., it was objected, that the pltff. was not a proper person to be apponted administratrix. By the law and practice of the court a widow of an intestate who left issue, was not entitled to administration, but it was always granted to the children ; so, if a woman died intestate, leaving husband and children by him, the administration would be granted to the children and not to their father. In this case there were many children, but all they required was, that administration should be granted to the officer of the court until the pending suit was settled.
For pltff. it was alleged that this was very different from a case of intestacy. Here there was a will, and the petitioner was the sole executrix. An examination had been gone into, and the witnesses to the will had already proved the due execution of it. The petitioner was therefore entitled to the administration, upon giving good and sufficient security for the forthcoming of the effects, which she was ready and willing to do. It was true that the deceased had left children, but they were the children of the first wife (and not by the petitioner) who were contesting the will ; the petitioner had only one child, who was an infant.
For defts., it was denied that there was any will. True, there was a paper set up by petitioner, but it remained to be proved whether that was a will. It was not correct to say the will was proved. A suit was pending concerning it, and part of the evidence was gone into, but that evidence could not be read here as being only part of the evidence in the case. It was important that the petitioner should not have the administration of the estate, as it would give her the power of suppressing the knowledge of facts connected with the property ; which, after the termination of perhaps a long contested suit, the next of kin might never be able to discover. If the will was thrown out, it would be clearly the interest of the petitioner to keep back all the money she could, and give up no more than the children could prove. But a disinterested person would take good care of the estate, search out the whole of the effects of the deceasedaccount for and preserve them for whomsoever might be entitled.
The VICAR-GENERAL, having taken some time to consider of the matter, stated, this day, that under the peculiar circumstances of the case he should swear in the widow administratrix pendente lite, but that he should require ample security.
Satisfactory pledges were produced, and entered into bonds for the personal estate. The petitioner was accordingly sworn in, in due form of law.
CHANCERY COURT, 8th Feb., 1839.
The complnt. had filed his bill in Chancery to obtain a perpetual injunction against a bill of exchange, of which the deft. Bibbie, as Managing Director of the Royal Bank, was the holder, and the said John Bibbie and J. Highfield, partners under the firm of Bibbie and Co., were the endorsers. Upon a former day the defts. Bibbie and Highfield had appeared by Mr. J. Kelly, and the complnt. now moved that service of the bill on Mr. Kelly, as the advocate of Bibbie and Highfield, might be deemed good service upon the deft. Bibbie as Manager of the Royal Bank.
KELLY objected to the substitution of service upon him, as imposing a burthen he ought not to be made to bear against his will. He was employed exclusively as the advocate of Messrs. Bibbie and Highfield in their partnership capacity, and was expressly instructed not to appear for the bank. He contended, therefore, that he ought not to be made to defend persons for whom he was not employed.
For the complnts. it was replied, that the deft. Bibbie, though before the Court in two capacities, was, nevertheless, but one person, and, therefore, substitution of service might well be granted upon his advocate. All the complnt. required was a rule to enable him to obtain the usual attachment. If a rule pro confesso should ultimately be obtained, the complnt s advocates pledged themselves that the rule should then be served upon the deft. in Liverpool, which service might be verified by affidavit, and the Court would make the rule absolute, as had been done upon former occasions.
COURT MINUTE.The Court will consider affidavit of service before the Mayor of Liverpool sufficient proof of the service.
NOTE.By this minute, it appears, substitution of service on Kelly was not allowed, but personal service (although in Liverpool) required.
CHANCERY COURT, 8th Feb., 1839.
BLIJETT and LAMOTHE for Pltff. ; DUMBELL and CLUCAS for Defts.
This was a petition of doleance, complaining against Vicar-General Corlett for refusing to rehear a cause under the following circumstances
Clucas and Crebbin, as administrators of Mylrea, deceased, had brought a suit against the petitioner for a sum of money alleged to be due to the estate of the deceased ; and, upon a hearing, they obtained the Vicar-Generals judgment against the present petitioner, who, feeling himself aggrieved thereby, presented his petition for a rehearing of the cause. The Vicar-General granted an order for hearing in the usual form, but, on the court day, the defts. Clucas and Crebbin objected to the petition being heard, upon the ground that the petition was not prosecuted in time. The Vicar-General held the objection good, and dismissed the petition with costs, without hearing the case or suffering the witnesses to be examined : from this dismissal the present application was brought. It was contended, for the petitioner, that the cause ought to have been heard, because the practice was to allow a rehearing any time within six months from the making of the first judgment. In this case the petition was presented, and an order for rehearing was extended upon it (as was admitted) only one day before the six months had expired ; but it was contended that one day was as good as any other number of days, and that the Vicar, having ordered the cause for hearing, ought to have heard it.
For deft. it was admitted that a rehearing might be had any time within six months, but it was contended ; first, that the word " months" was to be taken to mean lunar and not calendar months, and therefore the petition was not presented in time. This doctrine was distinctly laid down in Blackstone, where it was stated that the word "month" always was construed to be a lunar "month" unless it was stated to the contrary. Secondly, that it was not sufficient merely to present a petition and get an order upon it, (as in the present case) ; the summons, at least, ought to be made on the parties before the six months expired, otherwise the deft. in a suit might get a stay on his petition for a rehearing, and then put it in his pocket and delay the recovery of the pltffs. just debt.
For pltff. it was replied, that whatever might be the law of England, it was not the law of this country. The six months for recording mortgages, as required by the Act of Settlement, were always acted upon as six calendar months, though not so mentioned in the act, and there were multitudes of deeds on record that would be rendered void if a contrary construction was to prevail. So, all notices in deeds of one, two, three, or any number of months, were all, in common practice, looked and acted upon as calendar months; so were the six months allowed by the statute for entering appeals. That it was quite sufficient to present the petition to the judge within the six months and get an order on it, and the evil of delay, as suggested by the deft., could not possibly arise, unless by default of the Pltff. in the original judgment, because he had nothing to do but enforce his judgment. On every petition for a rehearing, " a stay" of the judgment complained of, if granted at all, was only granted " until the hearing," which is never more than a few days distant, and if the petitioner does not prosecute his petition the " stay" falls to the ground after the court day, and there is then nothing to impede the enforcing of the original judgment, which would be levied as a matter of course.
COURT MINUTE.The six months in the Acts of Tynwald have been always acted upon as meaning six calendar months.
Vicar-Generals judgment reversed.
DEEMSTERS COURT, 11th Feb., 1839.
BLUETT for Pltff ; HOWARD for Deft.
This suit was brought by warrant. The pltff. had obtained an execution against Robert Milburn, on the 17th December, for £15 land rent, due in November last. About the same time there were other executions obtained by other pltffs. against the same deft. These were all put into the Coroners hands within a few days of each other, and pawn was delivered upon them in the usual form. The Coroner, in due form of law, appraised and sold all the effects he could discover belonging to Milburn, which produced only £24, clear of the expenses, a sum insufficient to pay twenty shillings in the pound upon all the judgments in the officers hands. The pltff. now claimed to be entitled to the full amount of his execution in preference, it being for land rent, and the other executions merely for common debts.
HOWARD, for the pltffs. in the other executions, contended that the statute which gave a preference to landlords for their rents, referred only to cases where property was on the premises, and even then, he contended, it was necessary the landlord should take proceedings within fourteen days from his rent becoming due ; whereas, here there were no goods upon the premises, the tenancy having expired thirty-five days before any proceedings were taken by the pltff., and the Pltff. Bacon only obtained his execution on the 17th December last.
DUMBELL, as amicus curie, stated, that it was always the pracice to allow the rent in preference without reference to goods being found upon the premises on the date òf the execution, if it got into the hands of the officer before the effects were distributed. The Clerk of the Rolls always so decided in making distributions before him.
Per Curiam.Certainly that is the practice and common law. Let the pltff. be paid in preference the full amount of his execution.
15th Feb., 1839.
BLUETT for Plnff. ; DUMBELL for Deft.
This suit was brought by. petition to obtain an order of possession of certain parts of the estate of Tromode.
It was proved, in evidence, that John Watterson, deceased, had given a lease of the lands in dispute to his second son, now John Watterson, sen., which lease expired in November, 1838. Thos. Watterson, heir-at-law of John, deceased, thereupon brought his suit in the Deemsters Court for possession, and obtained the usual order, which he enforced, and then let the lands by public auction. The pltff., John Watterson, jun., attended the auction, took a letting of part of the lands under a lease, entered into possession, and began ploughing the same. The deft. for some years past had held the lands now let to the Pltff. under a lease granted to him by John Watterson, sen., which lease would not expire until November next, 1839. The deft. proceeded to plough the lands, and the present petition was brought to have him ordered to deliver up the quiet possession of the premises upon the allegation that he had improperly intruded himself into possession.
For deft. it was alleged, that he had been in possession for many years, under a lease granted by John Watterson, sen., the pltffs. father, which lease would not expire until the 12th Nov. next ; that he had not received notice to quit from any one, and it was too late now to take proceedings to eject any tenant from land.
Upon the part of the pltff. it was replied, that if the deft. was in possession at all under the lease alleged, it was clear he was so iilegally, because the right of John Watterson, sen., terminated in Nov., 1838, and, therefore, he could not give a title to deft., when he had not any right himself.
Per Curiam.I cannot now enter into the question of the rights of the parties. The deft. appears to have been in possession a long time, and it is now too late to bring a suit to turn him out. If he was improperly in possession, the suit ought to have been brought immediately, or within a reasonable time after the 12th November.
Dismissed with costs.
15th Feb., 1839.
BLUETT and DUMBELL for Pltff. ; QUIRK, Acting Attorney-General and STEPHEN and QUIRK for Deft.
The suit was brought by the petitioner, as heir-at-law of John Skillicorn, deceased, against the deft. who was his executrix. The object of the application was to obtain an erder of possession of lands of inheritance, out of which deft. claimed to be entitled to take " an executors crop."
It was proved that the deceased died on the 24th of Dec., 1838, and evidence was given to shew that, at that time, two acres and a-half of one field were sown with wheat, the remainder was under potatoes ; seven other acres were ploughed up, but no manure was spread thereon, three other acres were ploughed, and between one and two of them covered with wrack for potatoes, two other ones were ploughed and partly manured for potatoes, twelve other acres were sown down with grass seeds last year.
The lands in dispute had been settled by the deceased upon the petitioner, by deed, long previous to his marriage with the deft., who was his second wife. The petitioner was his eldest son by a former marriage. The deed purported to convey the lands in question to the petitioner to be possessed and held by him upon the decease of the grantor. The deceased had made his will a very few days before his death, and, thereof, had appointed the deft. sole executrix. Under the deed the petitioner claimed the lands, and under the will deft. claimed a right to take the crop off first.
BLUETT and DUMBELL, for petitioner, submitted, that there were two points for the consideration of the Court. First.Was the deft. entitled, notwithstanding the deed to the petitioner, to take out of the lands what was called " an executors crop ?" Secondly. Supposing her to be entitled to " an executors crop," what was the extent of that right ? If the question before the Court was between an heir-at-law, as such, and an administrator merely claiming by virtue of the law of the land, then each would take such rights only as the law would give. The heir would take the inheritance, and the administrator, it might be argued, would claim the crop as assets ; but here both parties claimed by virtue of the act of the testator, and the question was, who had the paramount right ? It was argued that the deceased, being perfectly solvent, had a right to dispose of his estate as he thought proper ; and having that right, he had, long before his second marriage, made an irrevocable settlement of the property upon his son and heir, the petitioner, to be possessed by him immediately~ upon his decease. By virtue of this settlement the pltff. claimed the immediate possession of the whole estate, without reference to the state of cultivation of any part of the lands. The deft. also claimed under a particular title from the testator, viz., his will ; but the will could not revoke the deed formerly made, and the executrix could only obtain whatever was not previously disposed of by deed. Secondly.If the Court should consider the deft. entitled to " an executors crop," still it would be most difficult to say what is to be considered "an executors crop;" and it was urged, that the utmost to which this undefined right could be extended, would be to allow the deft. to reap the fruit and produce of such seeds as had been sown previous to the death of the testator.
The ATTORNEY-GENERAL and QUIRK, jun., for deft., admitted that the deed of settlement on the pltff. was made before the deceadants marriage with the deft. ; but contended that the deed could have no effect upon the question, as it did not put the petitioner in a better situation than if he merely claimed as heir-at-law, because the deft. was not setting up a right as widow, in which case, of course, the deed would be conclusive against her ; but here she claims as executrix, and her right, so far from being undefined as argued by petitioner, is most accurately defined in a documçnt recorded in the Episcopal Registry. It is there distinctly laid down, "That if a farmer die after the 29th September and before the 12th November (old style), and he shall, previous to his decease, have done work towards a crop, by laying out dung, or by ploughing, &c., his executors shall be entitled to the ensuing crop of the farm if not precluded by deed of settlement or will, &c. If the farmer should die any time before the purification of the Virgin Mary, viz., the 2nd February, and no work done on his farm towards a crop, the heir shall have the ensuing crop, and the executor that in the haggard." In the present case the deceased died in December, and much work was done on the farm. The principle was recognized in the case of Christian v. Christian, and also in a case of Harrison v. Clarke, at Common Law, in 1807.
For petitioner it was replied, that the case of Christian v. Christian was not a case in point. That was a case in which a widow, who, having only right of dower in her husbands estate, had worked the whole of it herself. The suit was between the executors and the heir. The heir contended that the widows right ceased with her life, and the Court decided against the heir, and gave the executors of the widow the crops of the lands, upon proof that they had been partly ploughed and manure laid out upon the land previous to her decease. The case of Harrison v. Clark was against the Pltff., for, there, damages were awarded against the executrix.
Per Curiam.I am now, as I always have been, of opinion that the. doctrine of " an executors crop. is most injurious. It seems to me monstrous, that because a few furrows may be ploughed, and a few loads of manure put out upon the land, that these trifling things should entitle an executor to retain the lands against the heir. I am quite aware that the Staff of Government have decided this point differently ; but my judgment is not convinced, and as long as I hold the office of Deemster I must decide according to my conscience, until a decision of the Privy Council shall have finally settled the point of law. If that is not done, the Legislature must interfere and set the question at rest. The present suit is one of importance, and may help to settle the question. Let the papers be handed in, and I will give the case my best consideration.
The Court, after taking time to consider the matter, ordered that further evidence should be given concerning the state of cultivation of the lands at the time of the testators decease.
At the adjourned court several witnesses were examined to prove the general state of cultivation of the lands, and the manner in which the deceased intended to crop them had he lived. Upon this and other evidence, the Court made the following judgment: 4th March, 1839.
This Court is of opinion that the petitioner is entitled to possession of the estate, lands, and premises of Sulby, in this petition mentioned, with the exception of certain parts thereof, out of which the deft. is entitled to "an executors crop ;" and also with the exception of a certain other part thereof, lying below the road leading from Mullen-Corran towards Cronk-ne-Money, which, it appears to this Court, was disposed of by the said John Skillicorn before his decease. Ordered, therefore, that the deft. do forthwith deliver up possession of the said estate, lands, and premises, called Sulby, to the petitioner, save and except the following parts or parcels thereof, out of which the deft. is entitled to "an executors crop," viz., one field containing about two and a-half acres, situate next the garden, in part of which wheat was sown before the decease of the said John Skillicorn, and, in the other part thereof, turnips and potatoes were grown last year, the deft. taking care to sow down a good and sufficient quantity of rye-grass and clover seeds, in the said field, at the proper season this spring. Also another field, containing about seven acres, being the second field from the dwelling house, which was ploughed up previous to the said John Skillicorns decease, and prepared for barley. Also another field, containing about three acres, lying on the opposite side of the road to the last mentioned field, ploughed, and partly manured with sea-wrack, and prepared for potatoes before the decease of the said John Skiflicorn. Also another field, containing about two acres, situate next but one to the last mentioned field of three acres, which was ploughed and intended for turnips before the said John Skillicorns decease. Also another field, containing about one acre, situate and lying between the two and three acre fields last mentioned, which was ploughed and prepared for potatoes before the decease of the said John Skillicorn ; and also three other fields, containing respectively about seven acres, three acres, and two acres, which were sown down with rye-grass and clover seeds last year, by the said John Skillicorn, deceased, and were intended for a crop of hay, which said several fields this Court is of opinion the deft., as executrix of the said John Skillicorn, deceased, is entitled to hold until the crops now growing, or intended to be grown by the said John Skillicorn thereon, be severed and removed from off the same. And also save and except that part of the said estate of Sulby lying below the road leading from Mullen-Corran towards Cronk-ne-Money, sold and disposed of by the said John Skillicorn previous to his decease. And it is hereby further ordered, that this petition and judgment be forthwith recorded in the Rolls Office for the benefit of all parties.
J. J. HEYWOOD.
From this judgment the deft. appealed to the Staff of Government.
Upon the hearing of the appeal before the Staff of Government on the 2nd day of May, 1839
LLEWELLYN for the applnt.Whatever other doubt there can be in this case, it is quite clear that the law recognizes such a thing as " an executors crop." It is true there is not any settled law upon the whole question, but a few cases which have been recorded have been decided upon various points, and to them we must apply. The nearest case in point is that of Harrison v. Clark. There the Deemster was twice applied to and refused to interfere. The parties then went to Common Law, and the Pltff., the heir-at-law, recovered £5 damages. The damages might, probably, have been given because the deft had kept possession of the grass-lands, but the Court decided, in that case, in set words, " that the deft. was entitled to an executors crop. " True, it was not stated in the judgment what that was, and, therefore, although the question of right was decided, the extent of that right was still open to argument. He submitted, therefore, that, in the most modified view of the case, the executor would be entitled, not only to the lands sown, manured, or ploughed before the decease, but also to plough up and crop such lea-lands as the deceased himself, if he had lived, would have done, in a due and fair course of cultivation. And, in this limited view of the case, the executrix would be entitled to retain possession, not only of those lands, but also of every thing necessary to the enjoyment of the right, viz., the houses and offices, and all necessary for her horses, gears, carts, &c. He submitted, however, that the " executors crop" mentioned in Harrison v. Clarke meant a great deal more than this. Upon the strength of that case he contended that the executrix had a right to retain possession of the lands to make the best of them until the November following ; if she exceeded her right, she was answerable in damages at Common Law. It was clear that this was the principle acted upon in Harrison v. Clarke. The Deemster, in that case, refused to interfere, but left the executrix in possession, and the heir to his remedy at law. The heir went to law, and the jury established the right to the " executors crop," but gave £5 damages for injury done to the estate. He submitted that this ought to be the course pursued in the present case, and objected to the Deemsters taking evidence of the state of cropping, and directing certain parts of the lands to be given up, and allowing certain other parts to be retained. This was, in point of fact, an act of legislation. It was fixing that, by the judgment of a Deemster, which was not fixed by the Common or Statute Law of the country ; and he submitted that this neither was, nor ought to be, in the province of a Deemster. This objection, of course, went to the whole judgment. He also objected to that part of the judgment which ordered the executrix to sow down certain parts of the land with rye-grass seed ; this was also extra-judicial. The Deemster had clearly no power to order any kind of seed to be sown. The question before the Court is, what benefit and advantage is the executrix to have out of the land? not what preparation is to be made for a future crop, which the heir, and not the executrix is to enjoy. The heir might enter for the purpose of sowing his own seeds, but the executrix could not be bound to do so. With respect to the deed of settlement, he submitted, that it could not operate upon the question, or give the Pltff. a better right than he had simply as heir-at-law.
The advocates for the respndt. repeated and relied upon the arguments used in the court below ; and further objected, that whatever crop the executrix might be entitled to, she could have no right to the occupation of the offices and buildings ; because, she might carry off whatever crop she was entitled to, and the fodder with it ; if bound to leave the fodder, it might have been different, for then she might have some claim to store and thresh the corn. Harrison v. Clarke did not go the length contended for, of entitling the executrix to retain the whole estate, leaving the heir no other remedy than an action of damages for injuries or waste committed. It only established the point, that if an executor improperly retains more than the law allows, be is answerable to the heir in damages. The reason of the Deemster refusing to grant an order is not stated. Possibly the executrix had been allowed by the heir to retain the possession so long, that the Deemster would not exercise the summary jurisdiction of the Court, and this was still the settled practice in such cases.
ADJOURNED CHANCERY COURT, 8th May, 1839.
This Court is of opinion that the said judgment ought to be varied, so far as the same orders the applnt. to sow down a field containing two acres and one-half acre, in the said judgment mentioned, with a good and sufficient quantity of rye-grass and dover seeds, and the same is so ordered and adjudged accordingly. And it is hereby further ordered that the applnt. do suffer and permit the respndt., at the proper and accustomed season, to sow down the said field with grass seeds at his own proper cost and charges.
25th Feb., 1839.
Plnff. in Person ; QUIRK jun., for Defts.
The pltff. demanded execution for £11 , the amount of two promissory notes, made payable, two months after date, at the Isle of Man Joint Stock-Bank, with interest on the amounts until paid.
Objected for the defts., that no demand had been made on them, but that the deft. Cretney had gone to different parties to ascertain where the bill was, and could not find out, and that he had also gone to the Bank, before the bill became due, in order to pay the money, but the Bank refused to receive it.
For pltff. it was argued, that the note was a negotiable instrument, made payable, on a certain day, at a certain place. The note was negotiated, and, in due course of business, was presented by the holder for payment, on the day it became due, at the place where it was made payable, and payment was refused ; it was not necessary for the bill to be in the Bank the day before it was due, and it was submitted that no further demand was necessary. Pltff., therefore, moved for execution, with interest from the time of the note becoming due.
The facts being admitted as stated, the Deemster granted execution with interest.
INSOLVENT DEBTORS COURT, 26th Feb., 1839.
GELLING for Plnff. ; DUMBELL for Deft.
The petitioner Lace applied for his discharge under the Insolvent Debtors Act.
DUMBELL, for Elizabeth Gelling, a creditor of the petitioner, appeared to oppose the discharge.
GELLING, for petitioner, objected to Mr. Dumbell being allowed to address the Court for the purpose of opposing the petitioners discharge, no notice of such opposition having been served upon the petitioner as required by law, The only notice served was upon Friday, at nine oclock in the morning. The law required three clear days notice, and Sunday being dies non, the notice was insufficient, as it ought to have been served on Thursday.
DUMBELL submitted that the notice was quite sufficient. It had been served as early as nine oclock on Friday morning. Insolvent debtors were only allowed twenty-one days after their imprisonment to file their schedules. Sundays were included in this number, and they were always reckoned in the twenty-one days.
The Court held the notice to be insufficient, and the Insolvent was examined upon oath, and cross-examined by Mr. Dumbell.
7th March, 1839.
KELLY and BLUETT for Applnt. ; DUMBELL for Respndt
This was an appeal from Deemster Heywoods judgment, who, upon the petition of the respndt., had ordered the applnt. to deliver up to him possession of a certain dwelling house and garden in Ballasalla. From this judgment the present appeal was brought.
The facts of the case were as follows. In 1794, Margaret Johnstone and Eleanor Fayle executed a deed in favour of Christian Looney, whereby it was mentioned that for the natural love and affection they had for the said Christian Looney, their servant, they conveyed to her the premises in dispute, and other things in the deed mentioned. In consideration of which the said Christian Looney undertook to aid and assist them, and take diligent care of them during their natural lives and the natural life of the survivor of them, and if the said Christian Looney left them, or died before them, or either of them, the whole settled premises and goods were to revert to the grantors. After some time the grantors died, and Christian Looney possessed the settled premises, and then married Gilbert Shimmin, deceased. She subsequently made her will, and bequeathed the property in dispute to her husband,
Gilbert Shimmin, after her death, settled the premises, by deed, upon his son Thomas, the applnt.; Gilbert Shimmin, sen. died, and the respndt., about a fortnight afterwards, brought his suit before the Deemster, claiming the property as heir-at-law of the deceased, and praying to be put into possession of it.
The Deemster granted an order in favour of the respndt., and from that judgment the present appeal was brought.
KELLY, for the applnt., stated that this appeal was brought from the Deemsters judgment ; because, as he contended, it was not a question of which the Deemster ought to have taken cognizance, as it was the province of a jury, alone, to decide questions of title to real property. In this case the applnt. claimed under a title derived from his father, who took it by virtue of his wifes will upwards of thirty years ago. If the wife had no right to make such will, then the respndts. title must have commenced immediately on his mothers death, and he could have claimed the property immediately ; instead of which, Gilbert Shimmin, sen. had possessed the property from that time until his death. The whole question turned upon the fact, whether the deed to Catherine Looney was to be construed as a purchase in her or not. That was a question peculiarly for a jury ; and, therefore, the Deemster ought not to have disturbed the applnt. in his possession, but should have left the respndt. to seek his remedy at law.
DUMBELL, for the respndt., submitted, that the question of length of time in possession was not any part of the applnts. case in the court below ; if it had been there raised, respndt. was prepared to prove that, upon the death of his mother, he and his father occupied the premises in dispute between them equally. The Deemsters judgment was to be reviewed solely on the facts produced in the court below, and not upon any new matter. The applnt., in the court below, relied upon his deeds only, without any reference to length of possession ; and he, therefore, contended, that by those deeds the judgment in this case must be affirmed. The deed to Christian Looney was just a common settlement. It was already distinctly settled at Common Law, that a person taking property under such a title could not afterwards devise it by will; and it was only by such a devise that the applnt. set up any claim. If so, it was clear the heir-at-law was not to be kept out of the possession of the inheritance until applnt. tried a question at law, Upon these grounds, he contended, the heir-at-law, about whose title there could be no doubt, ought to be put into the immediate possession of the premises, and that it was the applnt. who ought to be left to seek his remedy at law. As far as the evidence went, there was nothing to shew that the applnt. had possessed the premises more than a fortnight, i.e., since his fathers death ; and, therefore, the judgment ought to be affirmed.
BLUETT, for the applnt., contended, in reply, that length of time was not necessary to the decision of this question. The respndts. petition shewed that the applnt. was in possession ; and, whether for a long time or a short time, a day or an hour, was immaterial. The deeds produced by the applnt. shewed that he was in possession, not as a mere wrong doer, but claiming under a title. It was said that the title was bad, because Christian Looney took under a settlement, and, therefore, could not devise the property by will. But that doctrine applied to family settlements ; whereas, Christian Looney was no relation whatever to the grantors. The deed in questiòn, however, was not a settlement, but a sale for a valuable consideration. A purchase might be made without money ; it was sufficient if moneys worth was given. In this case the grantor was bound to serve the grantors as long as she lived ; and if she died before either of them, or left their service, she forfeited every thing. This was, therefore, a purchase for a valuable consideration, paid in services. The question of purchase, or not purchase, it was the peculiar province of a jury to decide, and not cognizable before the Deemster. It would have been different if the heir-at-law had got into possession, and the applnt. had claimed possession by virtue of his title ; in such case, of course, the Deemster would quiet the heir in his possession until the other had established his claim at law. But, whereas, in this case, possession was accompanied by title ; whether the title was good or bad was only triable by a jury at Common Law, and the applnt. had no right to be put out of possession until his title was shewn to be bad.
COURT MINUTE.The respndts. remedy must he by action at law
DEEMSTERS Court, 11th March, 1839.
QUAYLE for Pltff. ; DUMBELL for Deft.
This was an application, brought by petition, to have the Setting Quest of Braddan ordered to divide certain premises, which the petitioner claimed as heir-at-law of William Stephen Stowell.
Objected by deft., that the Pltff. had not yet established his claim to the premises, and obtained an order of possession ; he had, therefore, no right to bring this suit, and must pay the costs.
Per Curiam.The petition must be dismissed with costs. You should have demanded possession out of court first of all. The petitioners right to the property is disputed, and you must establish your right before I can give you an order to divide.
CHANCERY COURT, 4th April, 1839.
STEPHEN for Pltff. ; DUMBELL for Deft.
Upon this cause being called over in the usual course, the complnt. moved to have the defts. committed to prison for their contempt. At the last court they were peremptorily limited to give in their answer, but they had neglected to do so, and were, therefore, in contempt of the rules of the court.
DUMBELL, for defts., observed, that the complnt. might move for a rule pro confesso.
STEPHEN, in reply, stated that a rule pro confesso would not answer the complnts. purpose, as he required the defts. answer upon oath. He, therefore, moved for a presentment against them for their contempt of the court.
CLERK of the ROLLS.If you absolutely require the oath of the defts., you must bring your application, specially, by petition; the question cannot be entered into upon common motion.
26th April, 1839.
HARTWELL, V. G.
KINLEY for Pltff. ; DUMBELL for Deft.
In this case pltff. had taken out an action to hold the deft. to bail for the maintenance of his illegitimate child ; bail was given to the action. Subsequently the pltff. was delivered of twins, and she now brought her suit by petition ; reciting the action, stating that it had been transmitted, that she had since been delivered of twins, and praying that she might be allowed to affiliate the children, and that the deft. might be ordered to pay the lying-in expenses with costs to be taxed.
DUMBELL, Tor deft., objected, that in this case the bail had only given security for the maintenance of one child, and, therefore, the Pltff. ought to state which was the eldest child. The bail was not security for two children, nor even for the survivor of two, but for one only, and that one must be fixed and certain, because his responsibility might be terminated by the childs death. He did not deny that the father was liable for the maintenance of both children, but certainly the bail could only be responsible for one.
KINLEY, for Pltff., replied, that the bail was security under the action for £20, and was, therefore, liable to that amount without reference to the number of children born. That, at any rate, the question could not now be raised, as the bail was no party to the suit. It would be time enough to decide that point when the bail was sued.
The Pltff. was therefore allowed to affiliate the children, and an order was granted against the deft. for the lying-in expenses and costs to be taxed.
2nd May, 1839.
CLUCAS for Pltff. ; STEPHEN for Defts.
This was a petition praying that the defts., who were assignees of the Rev. J. Nelson, an insolvent, might be ordered to make a return of the insolvents estate to the Rolls Office, and that they might be ordered to pay over the money to the Clerk of the Rolls for distribution.
It was objected that the application ought to have been made to the Insolvent Court, as the defts. were assignees appointed by that court.
It was replied for the petitioner, that the defts. were, in fact, trustees named in the Insolvent Debtors Court certainly, but appointed by deed ; and, therefore, as trustees they were properly amenable to the jurisdiction of the Court of Chancery.
The Court overruled the objection, and heard the cause upon the merits.
COURT MINUTE.Defts. ordered to furnish accounts of their proceedings to the Rolls Office upon oath, according to the rules of the Insolvent Court.
2nd May, 1839.
DUMBELL for Plnffs. ; QUIRK and BLUETT for Deft.
This was an application, by petition, to be allowed to proceed to quarry stones in a certain place, part of the Castle Mona estate, in the parish of Onchan, the property of the deft. It was proved, in evidence, that twenty years ago the place in question was used as a quarry, and that during the last five years stones for several houses had been taken out of that quarry, and that the present parties had been quarrying there up to a very few days before the suit was brought.
For deft. it was proved that the place in question was a precipitous cliff by the road side. That the hill had been planted to the very edge, part of it thirty, and part of it fifty years ago. That trees had, ever since those periods, been growing in the respective places mentioned, and their roots, at this time, hung over the very edge of the cliff, so that if more of the rock was quarried away some of the trees must fall. It was also proved that the whole face of the rock was bare for several hundred yards, and houses were built in front of the cliff or rock, and inclosed all round.
The pltffs., upon this evidence, relied upon the fact of the quarry having been opened and used, and claimed a right to continue the use of it upon the usual terms of surface damage.
For deft., it was urged, that he had lately resided off the Island, and the quarries had since then proceeded, therefore, without his knowledge ; but upon former occasions leave had been given. If the present case could succeed no mans private property would be safe.
The CLERK of the ROLLs.The quarries are not private property. They are reserved to the lord, with mines, minerals, and other royalties, subject to the public right to quarry for their own use.
For the deft.The whole shore of Douglas bay, beyond Castle Mona, may be said to be quarry. Valuable houses are built there, and if the public can be allowed to quarry to the destruction of an ancient wood, there is nothing to prevent them going into the enclosed premises, as the merely building a wall cannot alter the right, if it existed to the extent now claimed. In this case valuable trees are growing.
The LIEUT.-GOVERNOR.The value of the trees growing, or of the building to be affected by quarrying, it appears to me, would only increase the amount of surface damage, of which the jury, as usual, would be the judges.
For the deft.From the scarcity of wood in this Island, and the difficulty of getting trees to grow, money cannot compensate for the loss of well grown trees.
For petitioners it was replied, that there was no exception in the law as to places where trees might be growing. The quarry, as a matter of fact, had actually been used, and it was not necessary to prove anything more, to entitle the public to continue or resume the use of it. The inconveniences suggested to the private dwellings of parties was not likely to occur, because the expenses of surface damage, if a dwelling was injured, would be more than the stones would be worth.
COURT MINUTE.Petitioners have a right " to dig, raise, and quarry stones" in the quarry in this petition mentioned.
2nd May, 1839.
MHUTCHIN, C. R.
QUATLE for Pltffs ; DUMBELL for Deft.
This was an application, by petition, to have the deft., who had formerly been guardian of the minor, ordered to return his accounts to the Rolls Office.
DUMBELL, upon the part of deft., moved to have the petition dismissed, with costs, as being irregular and altogether unnecessary. There was a rule of court under and by virtue of which all guardians were ordered to return their accounts annually. If a guardian neglects this duty, the party aggrieved must take out a copy of the rule and serve it upon him. In this case it is quite needless to take any step ; if the deft. had been asked out of court, he would with pleasure have given a copy of his account immediately.
For petitioner it was replied, that, by the rule, guardians were ordered to make their return yearly. The rule, though it gave one remedy did not deprive a party of any other ; and, therefore, it was a proper step to apply to this court, the deft. having, in this case, neglected to make any return.
Per CLERK of the ROLLs.The rule was made expressly for the purpose of preventing such applications as these.
COURT MINUTE.Petition unnecessary. Dismissed, but without costs., deft. not having furnished accounts according to the rule of court.
6th May, 1839.
DUMBELL for Pltffs. ; BLUETT for Defts.
Thepetitioners brought this suit to have the defts. ordered to deliver up to them the key of their dwelling house.
The defts. had been employed to do the joiners work of the house, and, in consequence, were in the habit of keeping the key. When the work was finished, disputes arose as to the payments, and it was proved in evidence that the pltffs. sent a messenger, on Saturday, the 27th April, to demand the key. The defts. told the messenger they would give it up on the Monday following, but they did not do so, and the pltffs went to Mr. Dumbell to employ him to prosecute the suit. On the Wednesday following, the defts. tendered the key to one of the petitioners, but he refused to take it, and said, " you must go to Mr. Durnbell" (the advocate for the petitioners), and it was in the evening afterwards that the defts. were summoned to this days court. The question was therefore a mere question of costs.
Deemster HEYWOOD.The defts. on learning that a professional person had been employed, should have settled the matter, at once, out of court. The delivery of the key afterwards does not save the defts. from the payment of costs.
Usual order, with costs.
CHANCERY COURT, 6th June, 1839.
STEPHEN for Pltff. ; QUAYLE for Defts.
This was an application, by petition, in which it was stated that on the 4th February last, the petitioner had obtained execution against the deft., Thos. Fayle, for the sum of £5 l0s., with 19s. 4d. costs. That the execution was placed in the hands of the Lockman to be enforced, and that the deft. refused to deliver pawn. That a writ of contempt was issued against him, in consequence, under which he was imprisoned. That the deft. Fayle thereupon, with the other defts., entered into a joint bond to the Queen, in the penal sum of £20, that the deft. Fayle should, immediately upon his release from gaol, send for the officer holding the said execution, and deliver to him goods and sufficient pawn to discharge the amount of the said execution ; and upon entering into the bond he was released from gaol, but that, notwithstanding his undertaking, the deft. Fayle had not delivered pawn to satisfy the execution. The petition, therefore, prayed that the deft. Fayle might be remanded to gaol for his contempt until further order, and that, notwithstanding such imprisonment, execution might be awarded against the whole three defts., jointly and severally, for the amount of the said demand, with the costs of the said writ of contempt and of the present application.
STEPHEN, for petitioner, moved the judgment of the Court in terms of the statements made in the petition, the deft. Fayle having aggravated the offence committed by his contempt of the Deemsters execution, by shewing contempt of the authority of this court. The application ~ was brought according to the usual practice in such cases.
QUAYLE, for the deft. Fayle, admitted that the application was according to the usual practice, where a contempt had beeii actually committed, but in this case the petition was premature. The fact was, that the deft. Fayle had unadvisedly, and to gain a little time, refused pawn ; but subsequently repenting, had entered into the usual bonds in the Rolls Office, and afterwards, in pursuance of his undertaking, sent for the officer who held the execution, he being then prepared to give sufficient pawn ; but the judgment was not then in the officers hands, and deft. had never been called upon since. The petitioner, therefore, having neglected to send the execution to the proper officer, had no right to bring this petition, and, therefore, it must stand dismissed.
The Court held the petition to be premature, and dismissed it.
7th June, 1839.
HARTWELL, V. G.
STEPHEN for Pltff. ; DUMBELL for Deft.
The suit was brought by the pltff., a linendraper, to recover a sum of £20 9s. Sd., for goods alleged to have been used for the funeral of the deceased by the order of one Ann Bell.
Objected, that the greater part of the bill was for mourning clothes ordered by some of the next of kin for their own wearing.
STEPHEN, for pltff., stated, that the clothes in question were ordered by those who took the most beneficial interest in the deceadants estate, one of them being his favourite niece, and the other his sister, who lived with him, and had the ordering of the funeral.
DUMBELL.The Court cannot grant any thing but what was actually used for burying the dead man. The same point was raised in the case of Kegg and Lawson, where the accounts came on to be settled before the Clerk of the Rolls. In that case a nuncupative will was set up, and the executrix, supposing herself entitled to every thing, had ordered an expensive funeral, and charged for her own clothing, but the Clerk of the Rolls disallowed all the clothing and the extra funeral expenses. In this case the parties had gone to much more expense in the funeral than was necessary ; the deft. however, was not desirous of looking too closely into these matters, yet every item of clothing he felt bound to object to.
The Court disallowed every charge for clothing, and reduced the account to £6 14s. British.
COMMON LAW, 2nd July, 1839.
KELLY for Pltff. ; DUMBELL for Deft.
The declaration in this matter was filed last term. Upon the Coroner of Rushen calling over the parish in the usual form,
KELLY, for Pltff., moved to enter the cause upon the list, and called the court witnesses to prove the summons.
Only one witness appeared, whereupon, KELLY, for Pltff., moved for a presentment against the absent witness, and that the cause might be continued.
Deemster HEYWOOD.I will grant you a presentment against the witness, but I fear I cannot continue the suit, there being nü summons, at least now proved in the way the law requires, by two isitnesses.
KELLY, for Pltffi, submitted, that the practice was to continue the cause.
Deemster HEYWOOD.I am not aware of any such practice. The law requires the summons to be made in the presence of two witnesses, and to be proved by them. If either of the court witnesses does not attend, the summons cannot, of course, be proved. The witness is liable to all the expenses for his contempt, but the party must begin over again.
KELLY, for pltfL, submitted, that such a practice would be cxtremely inconvenient, and often injurious. A deft. might prevail on a court witness purposely to absent himself, and if the witness were a pauper, as frequently happened, the pltff. would be without redress. He felt certain he could find his Honour many precedents if the Court would hold over the rule for a short time.
Deemster HEYWOOD.Certainly, you can have my court minutes for many years past. No case of the kind occurs to me at present ; but, if you can find any precedents in point, I shall be happy to attend to them, as the justice of the case seems to require it.
KELLY, for pltff., subsequently cited two cases in Lib. Pli., 1832 before the Northern Deemster, and then examined the one witness, to show that the summons had been made in time.
The DEEMSTER.Upon these precedents I shall grant a presentment against the witness, and continue the cause upon the list, sufficient evidence having been given to satisfy me that due diligence has been used by the pltff., although the proof is not what the law requires to entitle him to proceed with the cause, as he would otherwise have been entitled to do, this day.
COMMON LAW, 11th July, 1839.
KELLY for Pltff. ; DUMBELL and GELLING for Deft.
This was an action for an assault.
The deft. objected, that the declaration did not set forth in what parish the offence was committed, nor did it even say in what town the.cause of action accrued. The words in the declaration were, " On the highway between Knock-Rushen and Castletown, " not even mentioning in the town of Castletown, but between one place and another place, without naming the parish ; and, therefore, he submitted that the pltff. must be nonsuited.
The Pltff. submitted, that the place where the assault was committed was set out with sufficient accuracy to enable the deft. to make his defence, which was all the law requires.
Per Curiam.I cannot force the pltff. to take a nonsuit if he does not think fit, but it is quite clear that the pltff. must set out the parish in his declaration. If the assault was committed in a town the pltff. must set forth both the town and the parish too. The town alone would not be sufficient ; for instance the town of Douglas is partly in the parish of Onchan and partly in the parish of Braddan.
The pltff. took a nonsuit.
23rd July, 1839.
HAINING for Pltff. ; BLUETT for Deft.
Upon the cause being called over no appearance was made, at first, for the deft., and the pltft s advocate moved for a presentment against the deft.
BLUETT, for deft., then called for the production of the usual certificate of summons, stating, that, if his client was legally summoned, he was willing to appear, but that no presentment could be granted against him, unless, by the production of a certificate of summons, he could be shewn to be in contempt of the Court.
HAINING, for pltff., submitted, that he was entitled to a presentment now, and might produce the certificate afterwards. The defts. advocate must appear or not, and if he refuses to appear he was entitled to a presentment.
Deemster HEYWOOD.You must produce the certificate now, the practice has long been so settled. The deft. does, in point of fact, appear, and calls upon you to prove that he is regularly summoned. No presentment can be granted, for there is nothing before me to shew that the deft. is in contempt of the Court.
CHANCERY COURT, 1st Aug., 1839.
Upon the Clerk of the Rolls calling over this cause, in the usual course,
The complnt. moved for a rule pro confesso against all the defts.
DUMBELL, for the deft. Wm. Fitzimmons, objected, that no rule had been obtained against his client to enjoin him to answer. An appearance only was entered for the deft. last court, and consent given to the complnt. to amend the bill by making Wm. Fitziminons a party ; but no motion was made by the complnt. as against him. As to all the other defts., it was true they appeared, and moved for time, but no motion was made by the complnt. even against them.
Per CLERK of the ROLLS.The complnt. is entitled to the rule moved for against all the defts. except William. If a deft. appears and moves for time to answer, it is the same as if the complnt. had moved that they be enjoined to answer. In point of fact, when the four courts are run out, the complnt. is entitled to move for a rule pro confesso ; and the deft. by appearing and moving for time to plead, answer, or demur, merely delays the motion for a single court.
Rule pro confesso allowed.
12th Aug., 1839.
CLUCAS for Pltff. ; LAMOTHE for Deft.
This was a petition to have the deft. imprisoned under a Jurys Return of no effects to discharge an execution granted for the amount of a Trespass Jurys verdict.
LAMOTHE, for deft., objected, that the jurys return was improperly made against his client, pawn not having been delivered by her, on the said execution ; and, therefore, he pleaded that fact as " good cause, " why the deft. should not be imprisoned.
CLUCAS, for Pltff., produced the jurys return, and submitted that the officers return must be received as correct. If he had made a false return he was answerable to the party.
Per Curiam..The jury s return is only a part of the proceedings in the cause ; the whole must be produced, and must be shewn to be regular in every branch of them.
CLUCAS, for deft., submitted, that the delivery of pawn was not always marked on the execution.
Deemster HEYWOOD.Then proof must be given of it. Before a party can be imprisoned he has a right to see that all the proceedings against him are regular. Let the cause be continued to shew the whole of the proceedings.
12th Aug., 1839.
LAMOTHE for Pltff. ; CLUCAS for Deft.
LAMOTHE called on this case, and stated, that this was a matter in which a Trespass Jury were summoned to give in their verdict. Two of the jurors did not appear, and he moved for a presentment against them.
Deemster HEYWOOD.I do not find the cause on my list. Under what authority have the jury been summoned ? I cannot grant a presentment unless you can shew an authority for summoning them ; have you any warrant?
LAMOTHE, for pltff., stated that the jurors and party were summoned by the Coroner under the trespass warrant ; and urged that the usual practice in such cases was to make the summons in that way.
Per Curiam.If you look to the trespass warrant you will see that it merely authorises the Coroner to convene a jury to view and estimate the damages done, but does not authorise him to summon the jurors and parties to court afterwards. I cannot, therefore, adopt any proceedings against the absent jurors, as they do not appear to have been legally summoned.
18th Nov., 1839.
CLUCAS for Pltff. ; STEPHEN for Deft.
William Dailey borrowed the sum of £ from A. B., and the Pltff., deft., and one Judith Christian joined the said William Dailey in a promissory note for the said sum of £, in which they bound themselves, jointly and severally, to pay the amount to the said
A.B. The note was not paid when due, and A.B. sued and obtained execution against all the four parties, which was enforced in the usual way. A jurys return was obtained against Dailey ; no proceedings were taken against Judith Christian, and the pltff., being solvent, paid the money, and now brought his suit to recover the one-half of the execution from the other, and now present deft., John Corlett.
STEPHEN, for deft., objected, that Judith Christian ought to have been made a party to the suit, as there was no reason to suppose she was insolvent.
CLUCAS, for pltff., then called upon the Coroner who had enforced the judgment, and he stated that he had not proceeded to obtain a jurys return against the said Judith Christian ; but he believed her to be insolvent, she having been imprisoned in default of payment of an order granted against her for goods bought at a Coroners auction.
STEPHEN, for deft., contended that this was not legal evidence of her insolvency. A jurys return was properly produced against Dailey, and the same evidence ought to be given as to Judith Christian, and, therefore, he submitted the suit was improperly brought in not making her a party.
The Court overruled the objection, and granted execution against the deft. for the one-half of the execution and jurys return.
18th Nov., 1839.
CLUCAS for Pltff. ; STEPHEN for Deft.
Suit brought for the price of a horse alleged to have been sold by the Pltff. to deft.
This was the second court day, and it appeared by the Deemsters court minutes of the former day, that " the deft. admits the debt, but says that no demand has been made."
On this day, CLUCAS, for pltff., examined a witness, John Gell, to prove that the demand had been made before the former court day. The witness deposed that he had, at the desire of the pltff., demanded the sum sued for ; that the deft. acknowledged it to be
clue, and promised to meet him in Ramsey to pay it. Deponent attended at Ramsey accordingly, and deft. then said, if deponent would produce an authority to receive the money he would pay it.
On cross-examination, it appeared the horse belonged to the witness, and that the money now sued for, when recovered, was for him. That the pltff. had sent the horse to the fair to be sold, and it was sold by the pltffs. servant. The witness was a minor, and the pltff. was his uncle.
Upon this evidence, STEPHEN, for deft., objected, that by the pltffs. own witness it had now been shewn that the horse, not being the property of the Pltff., he had, of course, no right to maintain this suit. That although it might be argued that the deft., having admitted the debt on a former day, was estopped from bringing any evidence of the fact now proved ; yet, as it came out from the cross-examination of the pltifs. own witness, it was fatal to the suit, as it shewed that the pltff. had no cause of suit. It was also further objected that the witness was incompetent, on the ground of his interest, as it was clear he was himself to receive the money sued for.
CLUCAS, for pltff., replied.The objection to the form of the suit is now too late, the deft. having admitted, at the former court, that he did stand indebted " to the pltff. " in the sum sued for, and merely denied the fact of the debt having been demanded before the suit was commenced. That being the only point at issue this day, the objection to the witness was equally untenable, because, by the invariable practice of the Court, even the pltff. himself was allowed to swear to the fact of a demand having been made before summons ; the uncle was, in fact, acting for the minor.
Execution granted with costs of two days.
25th Nov., 1839.
CORLETT for Pltff. ; CLUCAS for Deft.
Thomas Brew, sen., and Catherine, his wife, on the 3rd Jan., 1811, in consideration of natural love and affection, and a sum of.£160 in money, settled their estate of Ballamenagh, in the parish of Jurby, upon their son, Thomas Brew, jun., the one-half of the said estate in present possession, and the other half upon the death of the surviving grantors. Shortly after the settlement, Thomas Brew, jun., married the petitioner, and possessed one-half of the settled property, and with her marriage portion paid off the pecuniary consideration of the settlement. In 1815, Brew, jun., died before either of the grantors, never having possessed more than one-half of the said estate. The petitioner, as his widow, divided the property in possession with his heiress-at-law, and retained one-half of the lands possessed by her husband at his decease, that is to say, one-quarter of the whole estate. Brew, sen., died, and left Catherine, his widow, in the possession of the reserved half of the premises according to the settlement. Catherine, the surviving grantor, died in October, 1839, and the deft. obtained possession of the half held by her.
The present suit was brought for a partition of that half, upon the ground that the settlement was absolutely of the entire estate, and for a valuable consideration, which was, in fact, paid by the marriage portion of the petitioner; and that she was, therefore, entitled to a life estate in one-half of the settled premises by way of dower.
To which it was replied, that the Common Law only gave a widow one-half of what her husband actually possessed, and it had been decided that a small pecuniary consideration in a family settlement, did not alter the nature of the property.
Held that the widow was only entitled to one clear quarter of the whole settled estate.