[from Advocate's Notebook, 1847]
25th Nov., 1839.
CLUCAS for Pltff.; CORLETT for Deft.
At the time of bringing this suit, the pltff. was mortgagee in possession of certain lands of which the deft. was tenant under a lease. On the 8th of January a very violent storm of wind did considerable damage to the buildings on the premises. The suit was now brought to recover the year's rent, amounting to £100. CORLETT, for deft., claimed a set off for the sum of £2 9s. for the repairs which had been made in consequence of the damage done by the great storm, upon the ground, that damage of that kind is commonly repaired by the landlord, and had been so throughout the country upon the present occasion.
CLUCAS: The Common Law liability of the landlord, which, in such a case, I might feel disposed to admit, is in the present instance restrained by the direct covenants of the lease under which the deft. holds. It is therein expressly covenanted by the deft. "that he will keep and leave the premises in repair."
Per Curiam.-I am of opinion the deft. is bound by the terms of the lease to do the repairs in question, execution is therefore granted against the deft. for the full amount of the rent, but without prejudice to the deft. if he should be advised to try the question at law or otberwise.
30th Nov., 1839.
QUAYLE for Pltffs.; HAINING for Deft.
The suit was brought to have the deft. fined under the High-road Act of 1830, for driving his cart and horses upon the high-road without having the reins in his hand. It was proved that the deft. was driving his cart with two horses along the public high-road ; he was near the horses, but had not the reins in his hand. He was not at the time near any town or village.
HAINING, for deft.--The evidence for the pltffs. shews that the deft. was using all reasonable care ; he was not neglecting his horses, but near to them, and it never could have been the intention of the Legislature to compel a driver of a cart to have the reins continually in his hand, when driving on the open highroad not near any town or village.
QUAYLE, for pltff:-We have no means of ascertaining the intention of the Legislature, except by the wording of the act itself, which is very plain. The act of 1830, sec. 30, enacts,-"That if any driver of cart, car, or dray, shall drive any such cart, car, or dray, on any public highroad without having reins in his hand affixed to the bridle or head-stall of the horse or horses, or beasts of burthen, sufficient to guide the horse or horses, &c., shall for any such offence forfeit and pay any sum not exceeding twenty shillings." -Geneste Statutes, 45; and as the statute is a penal statute it must be construed strictly.
Fined £1 and costs.
2nd Dec., 1839.
CRAGIE for Pltff. ; DUMBELL for Deft.
The pltff. kept a public house, and the deft. was a carrier who put up his horses at the pltff's. stables. The suit was brought to recover £2 18s. 6d., being stable room for the deft's. horses, at the rate of threepence per head, per night.
DUMBELL, for deft., stated that his client had been in the occupation of the premises in question under various preceding landlords, at a fixed rent of £2 per annum. The pltff had recently taken a letting of the premises, and found the deft. in the occupation of part of them. No new agreement was made, but deft. was allowed to remain in possession, and, therefore, he submitted that being allowed to hold over, he could only be called upon to pay the former rent.
CRAIGIE, for pltff, contended, that it was the business of the deft. to have made a new bargain with the pltff, and that having failed to do so, the pltff. had a right to charge what was reasonable and fair for the accommodation he had. In fact, the occupancy was different to what it formerly was. The deft. having put more horses into the stables than formerly, which fact he was willing to leave to his oath after he had proved the reasonableness of the charge made.
A witness was then examined upon the part of the pltff., who proved that he was a carrier, and put up his horses at the pltff's. stables, and paid him sixpence for each horse, whether it stood an hour only, or the whole night. The deft. was then examined, and swore that he had occupied the stables for his horses for ten years past, at nearly the same rent ; and for several years past he had had the same number of horses in the stables from time to time for which he paid £1. He refused to pay the bill demanded by the pltf, but tendered £1 to him, being the same rent as he had formerly paid.
Per Curiam.-It was not the deft's. duty to make any new bargain, unless he received notice from the pltf. If a party enters into possession of premises, and finds other persons occupying any parts of them, it must be presumed he knows the nature of their holdings, because it his duty to inquire into it. If he be dissatisfied he must take the proper steps, but if he suffer the tenant to remain, it must be upon the same terms as formerly. This deft. having tendered what was due, according to the terms paid to former landlords, pltff. may take execution without costs.
Execution for £1 without costs. QUERY.-Could such an occupation be construed as a tenancy? What power had the pltff. to compel deft. to continue to put tip his horses there? If he discontinued in a week or so, how could pltff. charge him the twenty shillings alleged to be the rent"
2nd Dec., 1839.
DUMBELL for Pltff. ; STEPHEN and QUIRK for Deft.
The suit was brought for the possession of a smithy which had been let to the deft. up to the 12th November, but which he retained after that period. At the last court, held on the 18th Nov., the cause was continued, at the instance of the deft., to prove that he had used all diligence to quit the premises in dispute.
QUIRK, for deft., stated this day that the summons in this suit was served upon the deft. on the 14th Nov. ; that deft. thereupon used all diligence; and upon the 15th, having removed his goods, be delivered up the key to the pltfl:, which, he submitted, was within the time allowed by law, namely three days after the 12th, and therefore the suit was unnecessary.
DUMBELL, for pltff., admitted the facts as stated, but contended that the deft. ought to have given up the possession on the 12th November. Where premises are let up to a day fixed, the tenancy expires at twelve o'clock on the night of that day; and if a tenant holds over after that he is a trespasser. No doubt three days were frequently allowed to enable a tenant to remove his goods, but that was merely a matter of indulgence and forbearance, and not a matter of law.
QUIRK submitted that the custom had assumed the force of law, for it was the received opinion, and so acted upon throughout the country, that every tenant has a right to three day's grace to remove his goods.
Per Curiam.--Then let the country know that there is no such law. A tenant is bound to move on the day his tenancy expires, and has no right whatever to three day's grace. Let the pltff. take an order with costs.
QUIRK.-The possession has been given to the pltff.
DUMBELL.--True ; but nevertheless the order must be granted to recover the costs. The order will be discharged, of course, when the costs are paid.
Per Curiam.-Certainly ; take the usual order with costs.
9th Dec., 1839.
GELLING for Pltff. ; DUMBELL for Deft.
Pltff was mortgagee in possession of certain lands and premises of part of which the deft. was tenant. The suit was brought, by warrant, to obtain an execution for the rent due in November last.
For deft. it was objected, that he had never been served with the order of possession, or the rent arrested in his hands, which was the only proper way of proceeding. That not knowing of any other claimant, he had paid the rent to the landlord from whom he had taken the premises ; and when at length the pltff's. advocate demanded the rent, the deft. informed him he had already paid it, notwithstanding which, the pltffl: had summoned deft., and, therefore, he moved for costs.
GELLING, for pltffl:, admitted that deft. said he had paid the rent, but he shewed no receipt.
Per Curiam.-You should have noticed the deft. that the mortgagee was in possession, and should then have arrested the money in his hands.
Dismissed with costs.
9th Dec., 1839.
QUAYLE for Pltff.; HAINING for Deft.
The suit was brought, under a common warrant, to obtain an order of possession of certain lands given in security, the interest on the money advanced being in arrear.
By deed, bearing date the 21st October, 1826, " the deft. and his wife, in consideration of the sum of £100 British, did demise and mortgage unto William Clucas all his estate of Ballabeaule, in the parish of Braddan, to hold from year to year until the said principal sum of £100, with lawful interest and costs and charges, should be repaid." It was covenauted in the deed "that the deft. and his heirs should occupy and enjoy the demised premises to his own proper use and advantage, he obliging himself to pay the interest of the principal sum yearly, and every year, as the same should become due. Provided, that if the said Thomas Fayle, his heirs, &c., should fail in the payment of the interest as before mentioned at the end of any year of the demise, then it should be lawful for the mortgagee to enter upon and hold the beforementioned premises until full payment was made of the aforesaid sum of £100 British, with interest and charges." It was further agreed upon, ,that if the said Thomas Fayle should pay, or cause to be paid, the aforesaid interest two months after it became due every year unto the said William Clucas, his heirs, &c., it was to be only five per cent. per annum; and if not paid that same time, it was to be six per cent. per annum, as granted at commencement of said bill of mortgage.
HAINING, for deft., objected to the suit as premature. By the deed of mortgage the deft. was allowed two months to pay the interest; the deed was dated 21st October, 1826, and, consequently, the interest would not become due until the 21st December, whereas the deft. was summoned to this court on the 5th instant. QUAYLE, for pltff., contended that the latter clause relied upon by the deft., could only be construed to affect the rate of interest chargeable under the deed in the event of the interest being punctually paid, or within the two months, but that it in nowise affected the pltff's. right to recover the interest when due, nor affected or altered the time at which it became due. The mortgagor covenanted to pay the interest yearly and every year, and it was expressly provided in so many words " that if he failed in the payment of the interest, as before mentioned, at the end of any year of this demise, then it should be lawful for the mortgagee to enter upon and hold the beforementioned premises until payment was made. The subsequent clause by no means altered this prior and more conclusive part of the deed; it merely held out a bonus for punctual payment, and entitled the mortgagor to receive back the difference between six and five per cent., if he paid his interest within two months of its becoming due. The interest therefore being now unpaid, he submitted, that he had a right to the possession of the lands according to the express proviso in the deed.
HAINING relied on his first objection, and contended that the deft. had two months to pay his interest; that the time had not expired, therefore, there was, in fact, no interest in arrear, and the pltff had consequently no right to sue.
The Court ruled with the deft. and made the following judgment -"Upon reading a mortgage dated the 21st October, 1826, it appears to this Court that by a clause in the said mortgage, the deft. is allowed two months after the expiration of the year to pay the interest; and as that period has not elapsed since the expiration of the last year, viz., the 21st October, 1839, this suit is premature, and ought not to have been brought; but, as the deft. has been in contempt, this suit is dismissed without costs."
10th Dec., 1839.
KINLEY for PUT ; LAMOTHE for Deft.
Pltff sold a cow to Thos. Corris on the 12th May, for £6 6s., British, and the defts. went bail for the due payment of the price. The pltff wanted the defts. to give written bail, but they said there was no need. Subsequently £2 2s. was paid by Corris on account. Afterwards the pltff obtained an execution against Corris for the balance, and a jury's return of no effects. The suit was now brought to recover from the bail the amount of the execution against the principal, he having made default.
LAMOTHE, for defts., objected, that by the evidence adduced of the amount of the bail given, the suit could not be maintained. By the statute of 1825, no man could be made responsible for the debt of another beyond the sum of £5. The supposed bail in this case was £6 6s. ; and payment of part upon account afterwards, so as to reduce the sum within the statute, could not make that good, which was originally bad.
KINLEY, for pltffl:-The bail would have been in writing but the defts. themselves stated that there was no need.
Per Curiam.-That is only another part of the verbal promise, and therefore equally within the statute. The defts. seem to have understood the law somewhat better than the pltff.
13th Dec., 1839.
HARTWELL, V. G.
DUMBELL for Pltff.; KINLEY for Deft.
To recover an alleged debt.
The deft. called upon the pltff to produce his claim. DUMBELL, for pltff, moved for a continuance to produce the claim, which he alleged was entered, but a copy not come to hand. KINLEY moved for the costs of the day if the cause was continued, as this was the second day.
DUMBELL admitted that it was the second day the cause had been on, but it was the first time the claim was called for. Continued generally.
16th Dec., 1839.
DUMBELL for Pltff. ; STEPHEN and QUIRK for Defts.
Suit to obtain execution for the amount of an account. Objected by defts. that no account had been furnished. DUMBELL, for pltf- There has always been a pass book regularly kept, and therefore the parties have no need for an account. A witness was then examined, upon the part of the pltfl:, who proved that a pass book was kept between the parties and delivered to the defts., or one of them. That a few items were not entered into the pass book. The witness could not prove the delivery of any other account than the pass book.
QUIRK, upon this evidence, stated he was entitled to an account of particulars.
Per Curiam.-The deft. is entitled to an account of particulars as well as the pass book, in order to compare one with the other. Continued to furnish an account of particulars.
16th Dec., 1839.
DUMBELL for Pltff: ; BLUETT for Deft.
The suit was brought, by warrant, to obtain an execution for the amount of a Trespass Jury's verdict.
Upon a former court day the deft. had presented his petition complaining of the proceedings, praying to have them quashed, and the matters in dispute referred to Common Law. The petition was dismissed upon a hearing, and from this judgment the deft. presented his petition of appeal, which, on the 14th instant, his Honour accepted in the usual form.
BLUETT, for deft., objected to an execution being granted this day, the proceedings being appealed from and the appeal accepted.
DUMBELL, for pltfl:-The mere acceptance of an appeal is not sufficient to stay proceedings unless bonds are actually entered into in the Rolls' Office. The practice would be exceedingly inconvenient if it were otherwise; for appeals would be constantly entered to stay a judgment, and when that was effected, never prosecuted.
BLUETT, for pltf ., admitted that the mere acceptance of an appeal was not sufficient to prevent an officer enforcing a judgment in his bands; but in this case the objection went to prevent his Honour following up a suit by granting final judgment where he had already accepted an appeal. All he moved for was, that the cause should be continued this day to allow time to enter into the usual bond to prosecute the appeal.
Per Curiam.-The appeal was only accepted on Saturday, and I must allow the deft. time to enter into bonds. It is different to an officer enforcing a judgment already granted. The object of the appeal is to prevent me granting the execution moved for, and to have the matter sent to Common Law. I cannot, therefore, grant an execution now ; for if the Staff of Government should think this a fit matter for Common Law, my execution would be outstanding of a date later than my acceptance: Let the cause be continued for one court, and if the deft. neglects to enter into bonds by that time I shall grant execution.
16th Dec., 1839.
BLUETT for Pltff ; DUMBELL for Deft.
This was a suit, by petition, stating that the petitioner's son was bound apprentice to the deft. to learn the trade of a joiner. That the deft. neglected to instruct the apprentice in his trade, and employed him in farm work instead. The petition prayed that the deft. might be ordered to instruct the minor in his trade, or otherwise that the indentures might be cancelled.
Evidence was given to shew that the deft. had employed the apprentice occasionally in various matters of farm work. That deft. had sometimes been absent as much as two or three weeks together, but that at such times a senior apprentice had charge of the work, and instructed the petitioner's son. That the boy had on one occasion been permitted to work for a farmer for money at his own request, and had offered to work for the witness, who was now out of his time, if he could get clear of the deft.
For the petitioner it was alleged, that it was sufficiently proved that the petitioner's son was not properly instructed in his trade, and was employed in farm work when he ought to have been at his bench. That although the boy himself might sometimes be well pleased with leaving his trade, yet his father who was bound in the indenture had a right to complain.
DUMBELL, for deft., submitted, that the complaint was most frivolous. The boy had not been employed in farm work more than all country apprentices usually were, and often with his own consent; and therefore the petition ought to be dismissed.
Dismissed with costs.
19th Dec., 1839.
STEPHEN for Pltff.; CLUCAS for Deft.
The pltffl: obtained execution against one Thomas Craine on the 14th January, 1839, and immediately placed it in the hands of the Coroner of the Sheading in which Craine resided, and a jury's return was given of no effects to discharge the amount. The execution and return were then handed over by the Coroner to the present deft., before the 12th May, 1839, he being then Lockman of Andreas. On the 14th of Nov., 1839, the deft. was instructed to lay, and on that day did actually lay, an arrest upon the tenant of the said Thomas Craine, whose rent had become due to Craine upon the 12th, two days before the arrest was laid. Soon after the 12th, namely on the 18th Nov., the deft. sued the tenant, and obtained execution for the amount of the said rent, which he recovered and held in his bands. The other creditors of Craine had executions of older dates than that of the pltfl:, which had also been regularly enforced with returns of no effects made under them, and which were in the hands of the Coroner, and under which they had recovered previous rents, to wit 1837 and 1838, and under which, arrests were laid so far back as December, 1838, to secure the rent then commencing, and which became due as aforesaid on the 12th November, 1839. The question was, whether the pltff's. execution took precedence of the older executions, and excluded them from participating in the rent recovered for 1839.
STEPHEN, for pltff., contended, that the arrest laid under his execution, on the 14th November, two days after the rent had actually become due, entitled him to recover exclusively, notwitbstanding the arrests laid under the other executions before the rent became due. No sum of money can be attached under judgment until it is due ; and there is no distinction in this respect, whether that money be for rent or upon any other contract. If it be contended that the growing rent may be arrested ten months before it becomes due, because it was in inception, and must necessarily arise and become payable on a future day, the same reasons would equally apply to the rent which will arise in respect of the last year of the term which may not determine for ten years; the difference between months and years is immaterial; both rents are equally certain to arise in due time, for both are equally covenanted for by the lease, which has commenced to run; thus the argument would prove too much, it would lead to the conclusion that the whole rents for the term might be arrested by anticipation. The only true question is, whether the sum be actually and perfectly due and owing at the time when it is arrested; and this being so, the pltffl: alone, whose arrest was made on the 14th November, is entitled to the money, and the former arrests made ten months before it was due, are wholly ineffectual and inoperative.
CLUCAS, contra.-The pltf can have no such preference as is sought for, nor can he come in pari passu with the rest, for the older executions must precede. They were regularly enforced and kept alive by being handed from Coroner to Coroner; and being, in point of fact, in the hands of the Coroner when the arrests were made under the pltff's. execution, they are entitled to preference over his. The statute gives a preference to those executions that have been in the Coroner's hands twenty-one days before any other. The arrest made in the month of December, 1838, is good. The practice has been invariably in favour of such arrests. There are no other means of preventing collusion between the tenant and the landlords, to defeat creditors of the landlords. The mere act of laying an arrest on any particular fund, gives the pltf no preference.
STEPHEN, in reply.-The preference given by the statute, in respect of twenty-one days, is applicable only where the parties are ceeteris paribus with regard to the funds sought to be affected, and with respect to the funds now in dispute, the twenty-one days preference is rather in favour of the pltff, for the pltff's. arrest, made on the 14th November last is in advance, by twenty one days, of any diligence on the part of the former executions, indeed it does not appear they laid any arrest on the particular funds in question.
Deemster CHRISTIAN.-The questions will be, first,whether the arrest is good, being made before the rent became due; and secondly, whether the executions of both parties being in the hands of the officer, when the money was recovered, although no actual arrest had been made under the older execution, both parties are not entitled to participate pari passu, or either to the exclusion of the other.
Cur advis vult.
The parties afterwards agreed to divide pari passu, and the judgment of the Court was not called for.
Dec. 20th, 1839.
LAMOTHE and CORLETT for Pltff; CLUCAS and STEPHEN for Defts. This was a petition which stated, " that by deed of lease, bearing date the 19th day of April, 1836, the petitioner let his estate of Ballakerby to William Curphey, for the term of ten years, from the 12th Nov., 1835, and under which lease the said Curphey took possession and still holds the said estate. By the said lease the said Curphey covenanted and bound himself to petitioner " to keep the house and fences in tenantable repair, and to leave them in said repair." That the said Curphey, in violation of his said engagement, had suffered the dwelling-house and out-offices upon the said premises to go out of repair, and had suffered the said houses to remain unroofed and in a state of waste for many months last past, and the petitioner prayed the Court to order the deft. Curphey to put the premises into tenantable repair, in terms of the lease. The petition had come on, as against Curphey only, on a former day, when it appeared that the premises were sublet to one Corlett. On an objection taken on the part of Curphey, the petition was continued to make the deft. Corlett a party to the suit. By the covenant in the original lease referred to in the petition, " the said lessee bound and obliged himself to sow down, &c., and to keep the houses and fences in tenantable repair, and to leave them in said repair, and to spend the fodder on the premises." By the assignment of the lease to Corlett, dated 25th Jan., 1837, Corlett engaged himself, his executors, administrators, and assigns, to pay, or cause to be paid, the said William Curphey, his executors, administrators, and assigns, the yearly rent in the said deed mentioned, with the advanced sum of £8 10s. 6d., British, as the same might become due, and likewise to fulfil and perform the different covenants and conditions in the said deed of lease, of the 19th April, 1836, particularly mentioned. For performance whereof the different parties thereto bound themselves, their administrators, and assigns, either party to the other, in the penal sum of £80.
CLUCAS, for the deft. Curphey, suggested that there was a mortgagee in possession of the estate, and on that ground contended that this petition could not be maintained by the petitioner.
STEPHEN, for deft. Corlett, insisted that in no case of the kind could such redress as was prayed for be granted in this summary way during the lease. He referred to and relied upon the case of Ann Kelly v. Richard Heyes, decided by his Honour on the 9th July, 1838, when a similar application was refused.
LAMOTHE, contra, took a distinction between covenants " to leave in repair," and those "to keep and leave in repair." . These last, as in the present case, would well justify the Court in granting the relief prayed, viz., to order the party to make those repairs that are already required by the breach of covenant. This is a covenant which runs with the land, and equally binds the subtenant or assignee. The mortgagee's possession makes no difference, for the tenant cannot dispute the right of his landlord. The case of Kelly v. Heyes does not apply, for there the subtenant was no party to the suit.
CORLETT. The ancient jurisdiction of the Deemster in this Island was much larger than is generally now admitted, and his functions ought to be carefully preserved. The introduction of English doctrines, applicable to different forms of proceeding, tends to fritter away and destroy the wholesome means of justice afforded by our constitution in the Deemster's Court. Deemster Moore granted an order to inhibit the waste of an orchard by a tenant. Deemster CHRISTIAN.-Whether the present tendency to assimilate our proceedings to the English forms be for good or the contrary, we must take care not to transgress the limits of the jurisdiction. I am of opinion that I cannot interfere, and it is better to decide upon the broad principle of want of jurisdiction, without taking evidence as to the state of repair. Assuming the charges in the petition to be true, I dismiss the petition but without costs.
Petition dismissed without costs.
23rd Dec., 1839.
DUMBELL for Pltff.; HARRISON for Defts.
Suit brought against the owners of a boat for the sum of £4 5s. 2d., being for drink furnished as allowance to the carpenters at work upon the boat.
Objected, that the owners were not liable, and that, if liable, they pleaded the tippling act, in bar to the recovery of more than five shillings.
For pltff. it was replied, that with respect to the drink furnished as allowance to carpenters, the statute did not apply.
The DEEMSTER overruled the objection,
And the pltff. proceeded with his case, and called, as witnesses, the carpenters who did the work, and drank the liquor.
Objected by deft. that the witnesses were interested.
Per Curiam.-Not if the pltff. relinquishes any claim upon them; which relinquishment, if made, I shall enter upon my minutes.
DUMBELL, for pltff.-Of course we disclaim any demand against the carpenters, who were only the deft's. servants.
Evidence was then given by the carpenters, who proved that some of the ale was drunk in the house, and some out of it.
Upon this evidence the deft. again pleaded the statute, and the pltff. replied that as the evidence skewed the greater part was drunk out of the house, the deft. ought to shew to what part of the account the statute applied.
For the deft. it was rejoined, that, as the statute clearly applied to the account generally, it was for the pltff. to establish his own case, and prove what part o£ the account was not within the statute.
Per Curiam.-I can only, in my Court, grant execution for five shillings according to the statute, the evidence not being sufficient to shew what part was drunk out of the house ; but you shall have an opportunity, if you can, to satisfy a jury. I shall therefore grant execution for five shillings, without prejudice to your seeking further redress at law, if so advised.
23rd Dec., 1839.
GELLING and DUMBELL for Pltffs.; HARRISON for Deft.
This suit was to recover the amount of a promissory note. On former Court day the deft. denied that the debt had ever been emanded; and the cause was continued. To day the pltffs. were prepared to prove the demand, and deft. denied the debt.
DUMBELL.-It has been ruled that putting the pltff. on proof of a demand, is tantamount to an admission of the debt, and no proof is necessary, except of a demand.
HARRISON, for cleft., did not require the pltffs. to prove the demand, but contended that the pltffs. were bound to prove the debt. The Court ruled with the pltffs., and granted execution.
COMMON LAW, 18th Feb., 1840.
LAMOTHE for Pltff; CLUCAS for Defts.
In this matter the suit was brought to establish a right to lands which the deft. Skinner held in alleged right of his wife. The defts., William and Thomas, had been duly summoned, as proved at the bar of the court. It was also proved that a warrant had been taken out against Margaret, and placed in the Coroner's hands in due time, but the deft. Margaret had left the Island, and no summons had been effected.
LAMOTHE, for pltff, moved that a minute be entered on the record, as the pltff's. right might, without some evidence of the commencement of these proceedings, be barred by the expiration of twenty-one years.
Objected, by defts., that no such minute could be entered ; there was no summons and therefore nothing to take a minute of, as the declaration cannot be filed.
Per Curiam.-The declaration cannot be filed, but I shall enter upon the Court minutes the reason of it.
11th March, 1840.
M'HUTCHIN, C. R.
DUMBELL for Pltff ; STEPHEN for Deft.
Upon taxation of the pltff's. costs in a suit at law against the deft., it appeared upon one occasion the cause had been continued at Common Law, upon the absence of one of the pltff's. witnesses, against whom he moved for a presentment. The pltff afterwards had obtained a verdict at law with costs, and now upon taxation sought to recover from the deft. the costs of that day with the rest.
The deft. objected to these costs being allowed against him, as the pltff., by the statute of 1753, might have obtained the Deemster's execution against the witness on the day he stood in contempt for all costs he was put to by his non-appearance.
DUMBELL, for pltff, submitted that the costs were made out in the usual way, and the practice of the court was to recover such costs against the losing party, leaving him to his remedy against the witness who had stood in contempt. The greatest inconvenience would arise from following up the statute of 1753, for by that act not only the pltff., but the deft., inquestmen, jury, and witnesses, might every one of them obtain a separate execution against the witness, who very often was a mere pauper, and unable to pay any thing.
Per CLERK of the ROLLS.-By some means that act has fallen entirely into disuse.
Deemster Christian being present, his Honour requested his opinion.
His Honour the DEEMSTER stated, that he never remembered to have been called upon to make any judgment under the act.
Per CLERK of the ROLLS.-I am very unwilling to revive an act that has fallen into entire disuse for a series of years. Doubtless there was some great inconvenience found to arise from it. However, I think, having the benefit of the Deemster's presence, it will be better to settle the practice, and establish a precedent, that for the future a party obtaining a judgment with costs, shall also tax, against the losing party, the costs incurred by a witness standing in contempt ; and as this is settling a point of practice, I shall not allow the costs of this taxation.
16th March, 1840.
DUMBELL for Pltff.; QUAYLE for Deft.
This was a suit, by warrant, to recover £4 19s. 6d., the price of goods furnished to Dinwoodie, deceased, at the instance of the deft. It was proved that Dinwoodie, late of Castletown, deceased, about two years and a half ago wanted some cork wood from the pltff., which was refused, until the deft. went into the shop, and in the presence of a witness, said to the pltff., if you will let Dinwoodie have the goods, I will see you paid in a fortnight.
It was objected, upon the part of the deft., that the demand now made was for a less amount than the price of the goods actually delivered, as appeared by the invoice furnished at the time, which amounted to the sum of £5, British ; the odd sixpence was no doubt deducted for the purpose of evading the operation of the statute, which required all obligations for £5, and upwards, to be made in writing.
DUMBELL, for pltff., replied, that the bail in this matter was for an unknown amount, and therefore the sum demanded being less than £5, we have a right to recover.
QUAYLE, in answer, stated, that the bail was given for one item only, which amounted to £5, and the pltff could not, by reducing his bill, mend that which according to the statute was bad.
A witness was then called, who proved that when the goods were delivered, a bill for £5, British, was sent with them in the pltff's. name. The account so sent was for five hundred of corks, at twenty shillings per hundred.
The DEEMSTER stated that he would take the matter into his consideration.
23rd March, 1840.
This day the Court granted execution against deft. for £4 19s. 6d., with costs.
COMMON LAW, 12th May, 1840.
CHRISTIAN and HEYWOOD D.
QUAYLE for Pltff.; DUMBELL for Deft.
This was a suit to recover damages for alleged injuries committed upon the property of the pltff in Kirk Lonan. Notice had been served upon the pltff's. advocate to produce a power of attorney. The pltff. appeared in court in person.
Objection was taken by the deft., that he was not the person by whom he was sued; the pltffwho exhibited himself being Daniel Mylrea, of Lonan, whereas the declaration was filed by one Daniel Mylrea, of Braddan, quite another person.
For pltff., it was replied, that it was not necessary to state the style, title, or residence of the pltff. ; and, therefore, if unnecessary, the doing so could only be looked upon as surplusage, and the words might be struck out. In the case of Ewart v. Caley, the pltff was styled as of Castletown, and the deft. proved, that at the time of filing the declaration, the pltff. lived in Kirk Arbory. The objection was taken, but not held good, and the pltff. had a verdict.
DUMBELL, for deft.-The case of Ewart is not in point; the evidence is insufficient, it merely proves that on the 8th of May, which was the date the declaration was filed, the pltff. lived in Arbory ; so he might, and yet might have lived at Castletown at the time the declaration was filed. In Nash v. Battersby, and other cases cited in Petersdof, under title of "Addition," pltff. declared by the name E. N., gentleman ; plea, negatived this fact, to which pltfff demurred, and held bad, because it amounts to confession that the plea is true, and then the parties are not the same as mentioned in the declaration. He ought to have replied that he is a gentleman : this was exactly a case in point. Pltff need not, perhaps, have stated his residence, but having done so, he should have done it truly, otherwise the party is not the same as mentioned in the declaration.
Per Curiam.-We are of opinion the objection is good, and that the pltff must suffer a nonsuit.
The pltff , however, declined taking a nonsuit, and went to the jury.
18th May, 1840.
DUMBELL for Pltfl: ; BLUETT for Deft.
Suit to recover £8 10s., the balance of a draft drawn by Wm. Moore upon deft. The bill was in the words following :-Andreas, 26th Dec., 1839. £10 10s. 0d., British.
Mr. John Gick, please to pay the bearer, Mrs. Esther Cain, or order, the sum of Ten Pounds, Ten Shillings, British, and place the same to my account, for rent.
Five Pounds had been paid on account, and suit was brought for the balance
Objected by the deft., that the bill had never been shewn to him as Moore's authority for the payment to the pltff. He ad-mitted that he owed money to Moore, and that, on account of the representation of the pltff, he had paid him to the extent of £5, but refused to pay anything further until he got some orders from Moore, the landlord.
DUMBELL, for pltff, called the pltff to prove he had demanded the amount of the bill.
BLUETT objected, that the holder of a bill of exchange, which he submitted this was, was not a competent witness to prove presentment for acceptance or payment.
DUMBELL submitted that it bad always been decided as the practice of the court, that the pltff. was competent to prove a demand for a note or an account.
BLUETT, in reply, stated, that as bill transactions were now, through the medium of the banks, becoming more common, it might be a dangerous precedent to set, that the holder might him-self give evidence to prove he presented the bill for any purpose. Per Curiam.-By the law of England, Notaries Public stand in the place of the holder, and their certificates prove the demand, but our practice has always been to let the pltff. prove a demand if that fact be disputed. The pltff. may therefore be examined.