[from Advocate's Notebook, 1847]
Common LAW, 19th May, 1840. CHRISTIAN and HEYWOOD, D.
KINLEY for Pltff. ; CORLETT for Deft.
This was the third court; the deft. was off the Island, and the summons had been left last court, in February, in the usual way, This court the summons was made in the usual manner as before; notice was left at the deft's. last place of abode, and also with the tenant in possession of the estate in dispute, and pltff now moved to have the cause entered as of the third court.
CORLETT, for deft., objected to a continuance, as the deft. was on the Island after the summons had been left; and he gave evidence to shew that about fourteen days ago the deft. was in the Island, two days in Castletown, and one week in the parish of Ballaugh. Upon the part of the pltff., it was argued, that if the summons was once legally made, the deft's. subsequent return did not make it necessary to summon him over again ; the case of Faulder v. Harrison was referred to, as fully bearing out the principle. In that case Harrison, a native left the Island ; and during his absence an action was sued out against him, and upon his return to the Island he was arrested, and a special application was then brought to have the action quashed, upon the ground that although, during his absence, an action had been legally taken out, under which his property might be arrested, yet, as his absence alone gave the right to arrest his property, his return on the Island removed the only cause upon which an action could be sued out; and, therefore, his person could not legally be arrested. The Court, however, refused to set aside the arrest, and dismissed the petition with costs. This was a case in point; it established the principle, that that which was once legal and right could not be altered by the subsequent act of the parties.
A warrant had been taken out, and, on the 24th April, the Coroner went to deft's. residence, and was there informed that some time since he had left the Island, but had lately came back, and was now again gone. It was then proved that summons was left on Friday last, as by law required, and no evidence being given that the deft. was then on the Island, the Court allowed the rule to be entered as of the third court, and the cause was continued.
After the foregoing case was disposed of it was suggested that as the question was now brought under the notice of the Court, although the evidence given rendered it unnecessary to decide it, it would be most desirable that the point of practice should be settled, and it was suggested by some of the members of the bar, that if in real actions summons was left as by law required where deft. was off the Island, that which was in itself sufficient and legal at the time, ought not to be rendered insufficient by the subsequent return of the deft. The Court however seemed unwilling to establish the rule.
Deemster HEYWOOD.- I :think the Coroner is bound to use all due diligence. The law requires personal summons on the deft., and if he be off the Island up to the last moment, the officers should make enquiries, and if deft. should return in time, per-sonal summons should be made.
COMMON LAW, 19th May, 1840. CHRISTIAN and HEYWOOD, D.
LAMOTHE.and STEPHEN for Pltff:; CORLETT;for Defts.
This was the second court day, and the pltff's. advocate, in order to prove the summons of the deft., called Charles Howland, as a court witness, -who swore that the Lockman of Kirk Bride had duly summoned the deft., on the 7th instant, in -deponends -presence, and in the presence of Kelly, another witness ; and the Lockman then summoned-deponent,-and the other witness Kelly, to prove the summons, but Kelly had not attended this day, because Catherine Doran, one of the defts., had told him be need not attend,.as she would admit the summons. It was also stated that the warrant had been given to the Coroner of the sheading.by the pltff's. advocate in due time, but .,that the Coroner had given the warrant,. to his Lockman, and the Lockrnan was not in court.
Upon these facts,-
CORLETT,,for defts. objected to any rule whatever being entered upon_ the record, as summons was not proved in the manner., pointed out :by law, which required every summons to Common Law to be proved by the oaths of two witnesses present at the ;time such summons was made.
LAMOTHE,-for;pltf., contended that .he had shewn sufficient to entitle him to 'have :the cause heard. It was true that.two ;wit-nesses had not appeared to prove the summons, but the absence of one of them is-proved to have been by the act of one, of the defts. If, however, :the Court should ;think the pltf.-was not entitled to go to trial this day, he was clearly entitled to a continuance, for which purpose it was only necessary to stew that all due diligence had been used, which was sufficiently established by the evidence in the case.
Per Curiam.-The summons must be proved by two witnesses, and if one of them be absent, the officer's certificate that he was duly summoned to this court must be produced; in the absence of that certificate we do not consider the pltf. has shewn himself entitled to a continuance.
The pltf. then moved the Court to take a minute of the evidence, but the Court declined.
2nd July, 1840. READY, G.
LAMOTHE, for pltf., presented a petition to the Court, this day, stating all the foregoing facts, and praying to have the cause rein-stated. 'Affidavits were produced, proving all the facts as stated ; and pltff. now contended that the cause ought to have been con-tinued, due diligence having been used, so far as the pltff. was concerned, by the mere putting the warrant into the hands of the Coroner in time. If the Coroner neglected his duty afterwards, the pltf. was not to suffer for it.
The facts were admitted by the deft., but he still relied upon the law, which required the summons to be certified by oath of two witnesses.
The Court held the matter under consideration.
COMMON LAW, 7th July, 1840. This term the pltf. proved the summons of the deft. in legal form, and the Governor, not having made any judgment, the cause was held over, by consent, until his decision should be known; a continuance to be entered generally if the decision should be in the pltff's. favour, and a rule as of the first court, if the decision should be in favour of the deft.
The Governor's judgment was afterwards made ordering the cause to stand continued.
1st June 1840. HEYWOOD, D.
CRAIGIE for Pltff. ; DUMBELL for Defts.
Suit to recover the amount of a promissory note, passed by Caveen to Joughin, and alleged to have been endorsed by Joughin to pltff. The deft. Hampton having a judgment against Joughin, arrested the money in Caveen's hands, and now produced the Lockman's certificate of the arrest, endorsed upon the judgment, to prevent the pltff. recovering from him.
Objected by pltff:-That the Lockman's certificate was not sufficient evidence, lie must be in court to prove the arrest in person. DUMBELL.-The practice has always been to receive such certificates without proof.
Per Curiam.-The certificate is sufficient evidence of the arrest. The Lockman is the sworn officer of the Court, and, in such a case as this, the Court will take notice of his certificate without proof.
1st June, 1840. HEYWOOD, D.
BLUETT for Pltff: ; DUMBELL for Deft.
This suit Was brought to recover the sum of £3 14s. 6d. British for rent due the 12th May last, and 4s. the costs of an arrest for rent. This cause was brought on at the last court, and the pltff
then admitted that on the 11th May £2 14s. 6d. British had been tendered. To day the pltff claimed the £3 14s. 6d., but failed to prove it, and offered to leave the matter to the oath of the deft's. wife, who had made the agreement with the pltff:
DUMBELL, for the deft., objected to the left's. wife being examined in the nature of a witness against her husband.
Per Curiam.-The pltff leaves the matter to the oaths of deft. and Wife, but I cannot let her be examined unless her husband admits that he authorised his wife to make an agreement ; in such case I would allow the Wife to be examined, if pltff: was Willing to leave the question to her oath.
The pltff. then examined the deft., but he denied the amount of rent claimed, or that he had ever given any authority to his Wife to agree for rent, or that she had made any agreement to his knowledge ; in fact, that he refused to consent fo any increase of rent. Upon these facts pltff moved for execution upon the grouncls that the tender was insufficient, as the pltff. Was entitled to the costs of the arrest, which were not tendered,
DUMBELL.--The whole amount of the rent proved Was actually tendered the day before it became due, and it is, therefore, to be questioned Whether the deft. is bound to pay the costs of the arrest or not.
Per Curiam.-The tender is sufficient in this case. I do not think it necessary to have the costs of arrest tendered, they are discretionary With the Deemster, but the pltff. is entitled to 4s. 8d. costs of arrest.
Execution for £2 14s. 6d., With 4s. 8d. costs of arrest, but without costs of suit.
1st June, 1840. HEYWOOD, D.
DUMBELL for Pltff. ; STEPHEN and QUIRK for Deft,
This suit was brought to obtain an order of possession of mortgaged premises.
On the 13th May, 1813, John Cannell, proprietor of the estate of Bibaloe-Beg, in the Parish of Onclian, granted a mortgage upon it to John Skillicorn, of Sulby, for the sum of £488 1s. 7d. On the 17th February, 1814, John Cannell and William Corlett, as his trustee, granted a second mortgage to John Skillicorn on the same premises for £70. On the 6th March, 1316, interest being in arrear, John Skillicorn obtained an order of possession against Wm. Corlett, the trustee of the estate,upon the deed of the 13th of May 1813. On the 27th May, 1819, John Skillicorn assigned the mortgage of 1819 to Isabella Corkill ; and in the assignment was the following covenant : '
" And I, the said John Skillicorn, do hereby for myself, my executors, and assigns, engage to warrant, maintain, and defend the said security of Bibaloe-Beg to the said Isabella Corkill, her executors, administrators, and assigns, against the claim, challenge, and demand of any person or persons Whomsoever ; and that the said Isabella Corlett, her executors, administrators, and assigns, be entitled to every benefit in and under the said deed of mortgage herein assigned, which I, the said John Skillicorn, could or can claim or enjoy." And for faithful performance the sari John Skillicorn bound himself in the penalty of £200.
Upon these facts DUMBELL, for pltff:, now moved for an order of possession of the premises given in security.
QUIRK and STEPHEN.-This is a suit between two mortgagees, and they, therefore, objected in limine to the cause being heard before the Deemster, as by the statute of 1777, all disputes concerning mortgages are to be tried in the Chancery Court.
DUMBELL, for pltff.-The suit is properly brought here ; the act of 1777 only makes disputes concerning mortgages cognizable in the Chancery Court according to the Act of Settlement,
The DEEMSTER, under the circumstances, referred the case to Equity,
4th June, 1840 READY, G
CORLETT, BLUETT, and HAINING for Ptt(r. ; QUAYLE for Deft.
This was a petition trying to have a cause remanded to be reheard before the House of Keys,
CORLETT, BLUETT, and HAINING, for the petitioner, stated that the deft. Stowell had brought his suit in the Deemster's Court to recover five guineas for the grazing of a cow. The Deemster had referred the matter to Common Law, and Stowell had accordingly filed his declaration at law, in which he stated his demand for the grazing, and also that he had been put to great expense in recovering it, and he laid his damages at £10.
The case was tried at Common Law, and evidence was given that there had been proceedings in the Deemster's Court, but ne proof was exhibited of the amount of costs incurred. It was proved that £5 had been tendered after the hearing in the Deemster's Court, and prior to the Common Law proceedings. The jury gave a verdict of £4 4s., each party paying their own costs.
From this judgment the pltf. Stowell appealed to the House of Keys, and after the argument of the case one of the members of the House asked the amount of the costs incurred in the Deemster's Court, and the applnt's. advocate thereupon made out a memorandum in writing of the amount of costs alleged to have been incurred, and handed it into the court, who received it at the same time that the respndt's. advocate objected to the charge for costs, and offered to exhibit the Deemster's minutes in explanation of them, but this was refused, and the present application was therefore brought to have the matter remanded to be again heard by the House of Keys. It might be objected that there was no precedent for a rehearing of an appeal before the Keys; but there was no reason why, upon good cause shewn, a rehearing might not be ordered. The House of Keys were to be viewed in two capacities, as a legislative body and an Appellate Court. In the latter capacity they were in the nature of a superior jury, they acted entirely under the order of the Governor; they cannot call themselves together nor order an appeal to be heard. To bring on an appeal a petition is presented, by the party to the suit, to the Governor; who, thereupon, issues his precept to call the House together to hear appeals and grants his order upon the petition to summons the parties. In all this the Keys have only to obey the orders of the Governor; they originate nothing, and it was fair to argue that the same authority which could alone order them to hear a cause might also order them to rehear it, upon good cause shewn. The cause here shewn was that the Appellate Court had received evidence, and formed their verdict upon it, which was not before the jury in the court below, and had refused to receive counter evidence to explain it away.
QUAYLE.-Objected that there was no instance of a cause having been reheard by the House of Keys after they had once made and recorded their verdict. From the moment the appeal was duly entered, the Governor, as head of the Common Law Court, had no power or control over the cause except to appoint the time and give the authority for the hearing of it. After this, and verdict given, there was no other course, if the losing party felt aggrieved, than by appeal to the Privy Council.
Petition dismissed without costs.
5th June, 1840. READY, G.
BLUETT for Pltff; CORLETT for Deft.
Tracker had taken out his action of arrest against the deft. for the sum of £105 for money fairly won at play. The deft, now presented a petition to have the action quashed, upon the ground that the cause of action was illegal.
CORLETT, for deft., now argued that no gambling debt could be sued for by the Common Law of the land; he admitted we had not any statute law upon the subject of gaming; but in England many Acts of Parliament had been passed relating to it, and it was treated there as a highly immoral offence, and it had been so looked upon in this country more than once; in the matter of Stowell v. Watts, and also in another case. He was informed these were suits to recover the amount of money won at gambling. In the first case an action had been taken out and was quashed, this Court being of opinion no suit could be maintained for the recovery of a gambling debt. In the present suit it was stated upon the face of the action that the money was fairly won at play. How was this to be tried? Were they to go into all the details of the night's gambling, to try whether they played fair or cheated ? Were the records of the court to be defaced with particulars of this midnight scene ? He submitted that the Court ought to set its face against such suits as these, and quash the whole proceedings with costs, the cause of suit being an immoral act, and, as he contended, against the Common Law of the land.
BLUETT, for pltff, submitted, that the action was well brought, forasmuch as that there was neither Common nor Statute Law against it in this country. He was well pleased at all times to find the Common Law of England applied to for guidance in matters new to this country ; because its decisions were based upon the accumulated experience of wise judges, preserved by the reports of the cases for ages back ; but as the pltff's. advocate has, in this case, set up the Statute Law of England as his standard of morality, it became necessary to examine that standard a little. The general features of this standard clearly skew, that it was not the act itself of playing a game for money which constituted the offence in the eye of the law ; but the morality or immorality of the act was made to depend in some cases upon the time of the year ; in others the place where the gamsters played, the situation of the parties, or the amount played for; with other inconsistences. To select a few of these. The first statute of any importance is the 33rd Henry VIII. ; by this act no artificer, apprentice, labourer, or servant, shall play at tables, tennis, dice, cards, bowls, &c., out of Christmas time, on pain of 20s. for every offence. So that it was moral enough for these classes of people to play at cards, dice, &c. at Christmas time but exceedingly immoral all the rest of the year. But there was a further definition in this moral code, for even in the privileged time of Christmas the privileged parties were to play in their master's house or presence. This would appear to refer to the houses and presence of tradesmen employing such parties, but by the same act any nobleman or gentleman, having £100 per annum, might licence his servants or family to play within the precincts of his house or garden, as well amongst themselves as others repairing thither. By this singular enactment a nobleman could make the act of playing cards, dice, &c., moral by his licence-but a tradesman could not. But the nobleman's licence had some curious features too, tl)e same act, even by a licenced person, was obnoxious to the law or free from its penalties; and, therefore, by this curious standard, moral or immoral, according to the place where the act was committed. If done within his master's premises it was right; but if one inch the other side the boundary it was all wrong. By the10th Caro. II., £100 debt, incurred at play, was so immoral it could not be recovered; but £99 19s. 11¾. was within the standard, and moral enough. Again, by 9th Anne, they extended the notions of morality; £10 lost at play, at one sitting, was immoral, and might be recovered back with costs and heavy penalties. But £99 19s. 11¾d. in the pocket of the winner was sufficiently moral to be allowed to remain there. By the 12th Geo. II., private lotteries and littlegoes were prohibited, and heavy penalties inflicted on the immoral offence. But the " Great-Go," the state lottery was lawful and right-the moral standard being singularly reversed in this case. If one or more individuals enticed others to gamble in a small lottery, the law punished it as wrong, but if the State invited the whole public to embark in a great one, the law protected it as right. He would not weary the Court with any further remarks. It was quite clear, that, by the Common Law of England, gambling debts were recoverable until the Legislature interfered ; and in absence of any law here to the contrary, he assumed the same right to exist. It was not sufficient to say the Common Law was against such suits ; because a single case might be found in which the pltff, had failed; that might have depended on the circumstances of the case To establish any point at Common Law a series of cases would be required with one settled principle governing them all. As to the nature of the issue whether the money was fairly won at play, that was precisely what the pltff: knew he could prove, and placed it purposely on the face of his declaration.
CORLETT, in reply, stated, that only so much of the law of England had been quoted as suited the pltff's. purpose. But in Russell on Criminal Pleading gaming was shewn to be an indictable offence, and punishable as a highly immoral act. He submitted that so long as a single case could be found upon the record unappealed from, it must govern all future decisions, as the Court would never contradict its own judgments. The case of Moore v. Farrer was strictly in point.
Per CLERK of the ROLLS.-The case you allude to was M'Clure v. Farrer, and decided at Common Law. CORLETT.-The Court will doubtless follow up that decision, and, by dismissing this action with costs, discountenance all attempts to obtain the assistance of the courts in cases of this kind.
Action quashed without costs.
CHANCERY COURT, 2nd July, 1840.
KELLY for Pltfl: ; DUMBELL for Deft.
Petition presented stating that the defts. had been guardians of the petitioner's wife before her marriage, and had since returned their accounts to Record ; that they were incorrect, and, therefore, petition prayed that the accounts might be referred to the Clerk of the Rolls to be settled before him.
DUMBELL, for deft., objected to the petition, upon the ground that it did not state what items were complained of, so as to enable them to make a proper defence.
KELLY, in reply.-This is the usual mode of application. In long accounts, with very many items, it would be inconvenient to specify every item objected. The whole can be investigated before the Clerk of the Rolls.
The Court ruled with the petitioners, and directed the accounts to be inquired into before the Clerk of the Rolls.
13th July, 1840. HEYWOOD, D.
GELLING and DUMBELL for Pltff. ; HARRISON for Deft.
Suit brought by pltff: to recover £15, for goods furnished to William Corrin, a shoemaker, upon the written guarantee of the deft. The alleged guarantee was as follows
January 26th, 1837.'
I promise to go bail to Mr. Dinwoodie, tanner, of Castletown, for William Corrin, shoemaker, of Castletown, for the amount of Fifteen Pounds, British.
For deft. it was objected, that the guarantee was for £15 worth of goods which were furnished at the time, and subsequently paid for, and that the deft. was not liable for any subsequent account that might be incurred.
GELLING and DUMBELL, for pltff:, argued, that the guarantee was binding on the deft. for any goods furnished afterwards to the amount of £15, until the guarantee was duly withdrawn.
Per Curiam.-The guarantee is a continuing one until the credit is stopped by due notice. It is the same as a guarantee to a banker, which continues for all balances.
Execution for £15, with costs.
EXCHEQUER COURT, 6th Aug, 1840. READY, G.
BLUETT and CRAIGIE for Pltffs.; DUMBELL for Defts.
On the 25th June, 1840, respndts. presented their petition to Deemster Heywood, stating that "they were lessees of all that fishery of salmon and salmon-trout within that portion of the sea or salt water, contiguous and adjacent to the coast of the Isle of Man, called the Port of Douglas, more particularly described in a certain lease granted by George Quirk, Esq., her Majesty's ReceiverGeneral of the said Isle. That they are and have been frequently interrupted in the use and enjoyment of the right to fish as aforesaid, by John Younghusband, Thomas Rimmer, Robert Bridson, Philip Gale, Thomas Cannell, John Cannell, and others, who, on the night of Monday, the 22nd June, trawled with a large trawling net for fish in that part of the sea leased to the petitioners. Wherefore they prayed his Honour would quiet the petitioners in the free use and enjoyment of their right of fishery as aforesaid, and inhibit the then defts., and all other persons, in future from fishing in that part of the sea leased to the petitioners, and that they might pay costs."
Upon the hearing of this petition it was proved by various witnesses that, on Monday and Friday, the defts. were seen drawing their net in Douglas bay. Petitioners were fishing for salmon at the time. The defts. were heard to say "they had been trawling in the bay and had caught a quantity of common fish." The net used was the same as a salmon net, but of a smaller mesh and more injurious. They could not use the net without catching salmon if there were any where they fish.
Upon this evidence the Deemster made the following judgment: "The defts. are hereby inhibited from interfering by nets or any other way with petitioners, in the exercise of their rights under their lease, in drawing nets and in fishing for salmon and salmon-trout in the bay of Douglas, and the same is so ordered accordingly; and that the defts. do pay 20s. 7d. costs of suit and wages to witnesses."
From this judgment the defts. presented a petition for a rehearing, stating that the cause involved important interests of petititioners, and others who had hitherto enjoyed the privilege of drawing nets, and thereby earning a livelihood for themselves and families. That no advocate was employed or witnesses examined for the defts., and, therefore, they prayed a rehearing, and that witnesses might be examined for them, and the whole evidence be committed to writing, with a view to an appeal, if necessary ; and the petition prayed the Deemster would vary or set aside his judgment. Upon the rehearing, evidence was given by the defts. to shew that the fishermen of the Port of Douglas had been in the habit for years of trawling on the sands of Douglas, and that they took very large quantities of blocken which were sold by them to the public, and formed an important article of food for the poorer people. That they did not fish for salmon, but had sometimes caught some. No evidence was given by defts. as to the custom during the last few years.
The petition for a rehearing was dismissed with five shillings costs.
From these judgments the defts. appealed to the Staff of Government, and upon the hearing of the appeal the applnt. relied upon the common right of the public at large to catch common fish in the bay from time immemorial. The exclusive right to catch salmon had no good foundation. The grant to the Stanley family no doubt conveyed all rights of Piscary and other Royalties, but this probably referred to the herring fishery, and that salmon was not then considered a royalty. If the judgments appealed from were to be affirmed the poor would be deprived of a common right which had been enjoyed from all time.
For the respndts. it was contended, that the salmon fishing both in the bays and rivers had always been considered as royalties belonging to the lord, and, as such, repeated grants had been made of them. As to the present bay fishing, it had been the subject of continued leases, by the Lord's Receiver General, from time to time, and under such a lease the present respndts. claimed. The present judgments are in strict accordance with others previously given.
The Court made the following judgment:-"The judgments appealed from ought to be affirmed; to the effect that the applnts. may be proceeded against by way of contempt of the said judgment of the 29th June, 1840, if they, or either of them, catch, kill, or destroy any salmon, or salmon-trout, in the bay of Douglas, and that this appeal ought to be dismissed, but without costs."
10th Aug., 1840. CHRISTIAN, D.
This suit was brought by the pltfff, as Coroner, holding the Governor's execution on a decree in favour of the other pltff., Edward Corlett, against one Samuel Haigh ; and the object of the suit was to obtain an order against the deft. to deliver up to the Coroner certain goods, the property of Haigh, but in the present deft's. possession, and arrested in his hands under the decree.
CORLETT, for deft., took an objection to the jurisdiction of the Court. The proceeding originated in the Chancery Court; it was not transmitted to be tried in a court of law, but judgment was obtained in the first court, and the Governor's execution granted upon it, under which the goods in question were arrested ; every subsequent proceeding must, therefore, be in the same court, and not in the Deemster's Court.
CLUCAS, for pltff, in reply. -The object of the present suit is to obtain an account from the deft., upon oath at the bar of the court, of goods in his hands the property of another person, and arrested in his hands under an execution against the owner. The Deemster's Court had ample jurisdiction in such matters, and ex ercised it continually. One execution was as good as another, as to its legal effect and the manner of enforcing it ; and it ought not to make any difference what court had granted it. He had never known an instance of a party being examined at the bar of the Governor's Court to give an account of goods arrested under the Governor's execution-such practice would be exceedingly inconvenient, unnecessarily expensive, and a great waste of the valuable time of the Court.
The Court held the objection good, but, by the request and consent of the parties, the Deemster agreed to let the deft. be examined to save expenses.
20th Nov., 1840. HEYWOOD, D.
BLUETT for Pltff. ; DUMBELL for Deft.
On a former day, the suit having been brought to recover the amount of an account for printing, the deft. objected to the account, upon the ground that the bills printed were not according to the order given, and requested to have produced the original order given by the deft.
The cause was accordingly continued for the pltff. to produce the original order. The deft. having been summoned again this day, the pltff. moved to have the suit referred to Common Law, upon the ground that the original order had been lost, and that a commission would be required to prove the case in England, where the pltff resided.
DUMBELL, for deft., argued that the suit must be dismissed without prejudice to pltff's. seeking redress at law, if so advised. The pltff had no right to bring the deft. into court this day, and put him to the expense of an advocate, when he must have known he could not prove his case. He might have gone to law at once.
BLUETT, in reply.-The suit was proper to be brought in this court, and although it might also have been brought at Common Law, it would have been a harsh thing to put the deft. to so expensive a process. By the defence set up, a commission would be necessary, which could not be procured in the Deemster's Court, it was essential to get the suit out of this court, otherwise the deft. might plead a suit pending in this court for the same matter and things as the suit at law.
DUMBELL, for deft., submitted that such a plea could not be maintained; the course for the deft. to pursue in such a case would be to present a petition to have the suit in the Deemster's Court dismissed.
Per Curiam.-I think the circumstances entitle the pltff. to a reference to law. Take a reference.
21st Dec., 1840. HEYWOOD, D,
MOOSE for Phil: ; DUMBELL for Defts.
In this matter deft. objected that no sufficient summons had been made. The deft. John was a seafaring man, was in Glasgow at the time for summoning, and did not return until Saturday last.
For pltfff it was proved by the Coroner that he left summons with the deft's. wife on Thursday last, but that she stated at the time that her husband was off the Island.
Deemster HEYWOOD.-The summons is not sufficient. If a party is on the Island a "left summons" is sufficient, because it is the duty of the persons with whom the summons is left to acquaint the deft. But the case is different where the deft. is really off the Island, and cannot be supposed to have received any notice.
Feb., 1841. HEYWOOD, D.
DUMBELL for Pltff. ; BLUETT and CRAGIE for Deft.
This suit was brought, by warrant, to obtain an order for deft. to deliver up a cow formerly the property of John Corran as tenant to George Redfern. After the 12th of November last, Redfern, the landlord, obtained an execution for his rent against Corran, which was put into the hands of the pltff to be enforced, and the deft. Corran's effects were sold under the execution. They were insufficient, and a balance of the rent was still due. The cow claimed was grazing on the lands up to July, and was therefore alleged to be liable to the rent.
For deft. it was admitted that the cow now claimed was formerly grazing on the lands, and continued to do so up to the beginning of May; but it was alleged that she was then sent to graze on lands belonging to Sir George Drinkwater; that whilst grazing there the deft. agreed to give Corran £8 for her, and advance to him then and there £4 10s., and became thenceforth answerable to pay £2, the grazing money due to Sir George Drinkwater; but the balance was admitted to be unpaid, viz., £1 8s., and deft. submitted that he had a right to retain the cow, and the pltff had no right to bring him into suit, there being, at the time of sale, more property on the premises than was sufficient to pay the rent, which was all the law required.
Evidence was then given to skew that there was more property sold off the premises subsequent to the sale of the cow to the deft. than the amount of the rent.
DUMBELL, for pltffl:-The only question now raised is, whether the cow in dispute was absolutely sold to the deft., or merely given in pledge for so much money as deft. had advanced.
BLUETT, for deft., stated, that he was willing either to keep the cow and pay the balance, or give up the cow and receive the money he had advanced, viz., £6 12s.
The Court directed the cow to be given up to the Coroner upon the deft's. being paid £6 12s., by him advanced.
1st Feb., 1841. HEYWOOD, D.
DUMBELL for Pltffs. ; BLUETT for Defts.
The pltff. Clucas, as Coroner of Middle Sheading, held an execution against John Corran for rent due to George Redfern.
On the 8th Oct., 1840, Corran sold the defts. oats growing upon Redfern's premises, to the amount of £8 10s. 7d., in payment of an account due to the defts. The oats were delivered on the 10th, immediately ground into meal, and delivered out to customers, and the account was settled in the defts'. books the same day. Afterwards, on the 21st Oct., Wm. Kneale, Lockman of Braddan, had an arrest for rent put into his hands, against the said Corran, by the said pltff. Redfern, and thereunder had arrested in the hands of the defts. any property they might have belonging to the said John Corran, and also appraised goods on the premises to the amount of £22 9s. Afterwards Redfern himself bought from the Corran certain goods, and stacked them on the premises, but there not being sufficient goods upon the premises to pay the rent when it became due on the 12th of Nov., the present suit was brought against the defts. to recover from them the price of the oats, or the oats themselves, which had been delivered to the defts. and had been grown upon the lands for which the rent was due, in pursuance of the Act of Tynwald of 1753, which enacted that " no sale or assignment of a tenant's goods, though for a valuable consideration, shall be deemed good against the landlord's claim for rent, unless there are goods left sufficient to pay the same."
For deft. it was objected, that the goods delivered to him had been converted into meal and sold, and, of course, could not then be delivered. That, moreover, after the arrest the landlord himself had bought part of the goods arrested, by private contract, from Corran, and also taken possession of the land.
Per Curiam.-I cannot grant an order for the redelivery of the goods themselves, for the defts. have them not; but it appears there were also other goods on the premises which Redfern himself has interfered with, and bought after they were arrested. The suit must be dismissed.
CHANCERY COURT, 4th Feb., 1841.
DUMBELL and STEPHEN for Pltff.; CLUCAS, CORLETT, and BLUETT, for Defts. Upon motion made for a rule pro confesso to be made absolute against the deft. Corlett, it was objected by CLUCAS that his client was off the Island, and that the rule had not been duly served upon him, or even upon his advocate, who had entered an appearance for him.
For the complnt. the certificate of the Coroner was produced, which stated that he had left notice of the said rule at the usual place of residence of the deft.
It was objected that this was insufficient.
Per CLERK of the ROLLS.-The certificate is bad. If the Coroner had certified " that he duly served the rule" his certificate would at once have been received. It would be presumed that he had properly performed his duty.
Continued-The answer to be put in before the next court.
CHANCERY COURT, 4th Feb., 1841.
BLUETT for PUT : STEPHEN and QUIRE for Deft.
The suit was brought, by petition, to obtain an order of imprisonment against the deft. for the Governor's execution, there being a jury's return of nulla bona.
For deft. it was objected, that the proceeding to imprison a deft. under a jury's return was regulated by statute, passed in the year 1820, previous to which time no person could be imprisoned under a return of nulla bona. In this case the debt was contracted before the act was passed, and therefore the deft. was not liable to imprisonment.
For pltff. it was admitted, that the original debt was contracted before the passing of the act in 1820, upon a note bearing interest. Execution was not obtained until 1836, and the accruing interest was continually forming a new debt, or cause of action, and for this new debt the deft. was liable to be imprisoned.
Dismissed without costs.
15th Feb., 1841. HEYWOOD, D.
DUMBELL for Pltff; Deft. in Person.
To have deft. fined for pursuing game without a license.
Deft. admitted, that having a few young gentlemen on a visit from the College, he had requested his friend Mr. Banks, who had a license, to come over to the Hove and shew them some sport, and deft., considering he was justified in doing so, went out to see the sport.
Per Curiam.-Every unlicensed person who joins a party, and aids and assists in pursuit of game, is liable to be fined, although he has a licensed person in his company. The deft. is fined.
15th Feb., 1841. HEYWOOD, D.
DUMBELL for Pltff.; Deft. in Person.
Suit, by warrant, to have deft. fined for pursuing game without a license.
It was proved in evidence that persons were out coursing, some of them being licensed persons, and others not ; they had greyhounds with them, and took two or three hares. The deft. was with them, but did not take any active part in beating and seeking for the game ; he was on his own lands at first, and went over other lands also, and afterwards went with the party to dine at Seafield.
Upon the part of deft. it was submitted, that he met the parties on his own estate, gave them leave to course there, and went to shew them the boundary of his place, but did not take any part in the sport in the way of assisting the parties ; he was merely there as a spectator.
Per Curiam.-I am most anxious that the law should be settled and understood in this matter. I am glad to find suits brought against parties able to take the case further if they should be dissatisfied with my judgment. There appears to be great misapprehension as to the law, arising probably from some gentlemen having a general idea of the practice in England. But the law there is quite different, there being an express clause in the act to protect certain parties going out with other licensed persons to aid and assist them in taking game. But our statute has no such provision. The words are most express, positive, and comprehensive :-" Any person going in pursuit of game." I feel bound, therefore, to act upon my own judgment until I am set right, if I am wrong; and in my opinion all unlicensed persons aiding and assisting licensed persons in the pursuit of game, are liable to a fine according to the statute. The deft. is therefore fined accordingly.