[from Advocate's Notebook, 1847]
15th Feb., 1841. HEYWOOD, D.
DUMBELL for Pltff ; BLUETT for Deft.
To have deft. fined for going in pursuit of game without a license.
The deft. had taken out a license for his own servant, not being able to go out on account of his general occupation. It was proved by the deft's. servant that he was sent up by the deft. with his dog to meet a dog of Mr. Moore's. They met accordingly, and deft. afterwards came on the premises, and went with them. They went in search of hares.
Per Curiam.-There is no difference between this case and the others. If a party chooses to take out a license for his servant, he may do so ; but it will not authorise him to accompany his servant in pursuit of game. The deft. must be fined.
COMMON LAW, 16th Feb., 1841.
LAMOTHE for Pltff; DUMBELL for Creditors. Upon this cause being called on for a hearing,
DUMBELL appeared upon the behalf of the assignees of Hayes, and stated, that this suit was brought under a transmission from the Court of Chancery, and that since the action of arrest had been sued out, and the deft's. effects arrested under it, the deft. had been imprisoned for debt, and had taken the benefit of the Insolvent Act, having made over all his property to assignees for the benefit of his creditors. The present suit was brought to recover damages, and the pltff. was made a party on the deft's. schedule for this very cause of action. He was, therefore, discharged from this claim as well as others ; and having no personal interest in the suit, it was expected he would make no sufficient defence, but let a verdict go by default, which would afterwards be levied out of the effects assigned for the benefit of creditors. Under these circumstances he (Mr. Dumbell) moved to have the cause continued until next court, when he undertook to appear, without notice, to defend the suits upon the part of the assignees.
LAMOTHE, for pltf, objected to any such motion being entertained by the Court. No one could appear in the cause but the parties to the record. The assignees had no right to appear. The goods arrested were all sold under execution before assignees were appointed, and were now in the Coroner's hands. Mr. Clucas ap-peared for the creditors at the last court, and the cause was continued to come on this court without notice. There was no objection to the creditors employing any advocate to defend the suit, but it was not right that one advocate should appear one day to consent, and another advocate the next court, to put off the cause.
DUMBELL.-Mr. Clucas was only employed for some of the creditors, but I appear for the assignees, who represent the whole, and I undertake for them to appear next court.
Per Curiam.-We are both of opinion the case should be continued under the circumstances of the case.
LAMOTHE prayed that a note of his objection might be taken-to which the Court immediately assented.
23rd Feb., 1841. HEYWOOD, D.
CORLETT for Pltff.; LAMOTHE for Deft.
This was a suit brought by petition praying to be adjudged entitled to an executor's crop, out of two certain fields, upon paying the deft. for seed and labour, under the following circumstances:-
It appeared that Elizabeth Caley was entitled to a right of dower in the estate of Ballabeg, in Lezayre, and, being in possession thereof for many years, on the 3rd, 4th, and 5th of December, 1840, the pltff , who was acting as her manager of the farm, ploughed up two fields for the purpose of sowing down the same with wheat; one of the fields had been previously green-cropped and well manured for the purpose, and. the other was lea. That on the 8th December the two fields were ploughed and ready to be sown down. Elizabeth Caley died, having made her will, and appointed the petitioner her executor. The petitioner accordingly obtained probate of the will, and was duly sworn executor. That soon after the decease of Elizabeth Caley, the deft., who is her heir-at-law, took possession of the fields, sowed one of them with corn, and is proceeding to sow the other at the time of bringing this suit. The pltff. prayed possession might be ordered him.
For deft.-The pltff. got into possession when the testatrix was dying, and, a day or two before her death, he ploughed the fields in question ; one of them had only been sown down with rye-grass and clover the spring before her death, and ought not to have been broken up at all. The deceased having died in December, there cannot be an executor's crop of any part.
Per Curiam.-Whether the fields were properly cultivated or not, is a question I cannot go into, as it was an act done in the life-time of the deceased, and against whom no action could be brought. Neither is her executor liable ; and, therefore, that part of the case has nothing to do with the present suit. I am, therefore, of opinion the pltff. is entitled to a crop out of the two fields in question, subject to a compensation to the deft. for the seed and labour expended by him.
1st March, 1841. HEYWOOD, D.
CBAIGIE for Pltff. ; DUMBELL for Deft.
Suit to have deft. fined for pursuing game without a license:
A witness proved that he was passing by and saw Col. Murray upon his own lands with a gun. He also saw a boy in a plantation, outside of which the deft. was standing; the boy was shouting ." cock, cock," and appeared to deponent to be beating for game. When the deft. saw the witness coming, he called the boy out of the plantation.
For deft., it was replied, that he was upon his own lands shooting rabbits, which he wanted to root out of his estate, and, no doubt, if he saw any boy trespassing upon his plantation he could order him out.
Per Curiam.-There is no evidence to connect the boy in the plantation with the deft. as his servant, or as in any way acting with him or for him. I am of opinion there is not a sufficient case proved ; but if the pltff. thinks he can make a better case he may take a nonsuit.
2nd March, 1841. HEYWOOD, D.
QUIRK for Pltff.; CRAIGIE for Deft.
To recover amount of a debt and costs of an action for £8 2s. 6d. The question raised was as to the costs, the debt being admitted.
The deft. alleged that he had been some years living in the Island in his own furnished house, and was so at the time of the action being taken out, and, therefore, there was no sufficient cause for taking out an action, and pltff. could only be entitled to common costs of an execution in the Deemster's Court. The arrest taken out by the pltff. had led another creditor to sue in the Deemster's Court for £50, which, by that summary process, was speedily paid. Evidence was given to prove these facts.
Per Curiam.-It is most desirable to prevent unnecessary arrest. The law of arrest is very necessary to this Island, but it is most important to prevent its abuse. In this case the debt might have been recovered by common execution. The deft. has been proved to have been a housekeeper, living in his own furnished house for some years past, and is still so living. There is no cause proved in evidence before me this day for taking out this action, and, therefore, I grant execution, but I can only award common costs of the Deemster's Court.
15th March, 1840. HEYWOOD, D.
HARRISON for Pltff. ; QUIRK, jun., for Deft.
This suit was brought to obtain an execution for the gum of £65 14s., with interest from the 6th April, 1837, being the amount of a mortgage granted by deft. in the terms of the statute, the deft. being then in gaol for the amount of an order.
QUIRK objected, that the pltff. could only obtain an order of possession of the premises given in security, and was not entitled to another execution. Having already an execution for the principal money he could not, of course, obtain another judgment for the same debt.
HARRISON.-The pltff. is not in a situation to obtain an order of possession, having neglected to record his deed. But although it was not a charge upon the premises, it was good evidence of an undertaking to pay interest upon the principal sum; and, therefore, if the pltff. was not entitled to an execution for the principal money on account of the previous execution, he was, at any rate, entitled to judgment for the interest in arrear, that being entirely a new debt. Execution granted for 911 16s. 6d. the amount of three years interest in arrear on the mortgage.
4th March, 1841. READY, G.
QUIRE jun., for Pltff. ; QUAYLE for Deft.
Application, by petition, to have an action quashed for insufficiency of the affidavit. The action was for a sum of £18, and the affidavit stated that the deft. was not a native of this Isle, and that the deponent had been informed by James McKenzie, of Douglas, that the deft. was about to leave the Island, but the affidavit did not state that the deponent " believed" the information so given to him, which the statute expressly required.
By the Act of Tynwald of the 21st July, 1820, it is enacted that "no action of arrest shall be granted against any person for any sum of money under forty shillings, unless affidavit shall be made to the said debt, and that the pltff. is apprehensive that such person is about to depart the said Isle."-Mills, 406.
Action dismissed without costs.
April, 1841. M'HUTCHIN, C. R.
DUMBELL and CORLETT for Pltff.; QUAYLE for Deft.
The pltff. had obtained a verdict at law against the Parish of Braddan for damages done to his house by rioters in the Town of Douglas, and had since followed up his suit by obtaining an execution with costs to be taxed. The matter of taxation now came on before his Honour the Clerk of the Rolls.
A question was raised by the defts. as to the right of the pltff'S. advocate to charge three full bills of costs. Three persons who had suffered damages in the same riots had brought three separate suits, and employed the same advocate. As the facts and amount of damages were admitted, and a question of law only to be determined, it was agreed, upon the hearing of the first cause, that the one verdict should decide the three suits, and the same evidence be assumed to have been used in each. It was contended, therefore, that only nominal costs ought to be allowed in two of the suits, as the same defts. had to pay them all.
For pltff. it was replied, that the same advocate being employed in the three suits, did not make them the less distinct. A different advocate might have been employed in each suit; each pltff's. verdict was different in amount of damages, and each had execution with costs. There could be no ground to look upon the three causes as one, because they were not only distinct suits upon the record, but in fact; and payment to pltfl: of his debt and costs in one suit, would not discharge the debt and costs due to either of the others. The advocate would look to each of his clients for his full costs, and the bills ought to be taxed against the defts. just the same as if three different advocates were employed. The agreement stated did not occur until the hearing, and a due re-duction was made in the bills in consequence.
The CLERK of the ROLLS ruled with the pltff, and taxed the three bills of costs accordingly.
14th April, 1841. M'HUTCHIN, C.R.
Pltff in Person; DUMBELL for Defts.
The pltff. had been employed to defend three separate suits brought against the parish in the same term, and now the pltff. sought to tax his costs against his own clients.
The defence set up upon the trial was, that another parish was liable, and it was agreed, upon the hearing, that the verdict in one case should also decide the other two, and three separate verdicts be entered. Several adjournments had taken place, both at Common Law, and, afterwards, upon the appeal to the House of Keys, and the usual charges for journies to the adjourned courts were made in each of the three suits. Besides other minor objections, it was now contended, that these charges for "journies" ought only to be allowed in one of the bills, and not in the other two; because, as against his own client, an advocate had but one bill, and whatever might be the number of causes he might be engaged in on any one day, he only took "one journey" for his client on that day, and could not be allowed to charge as many journies as there were suits in which he was employed for the same client.
To this it was replied, that the suits were distinct, and, therefore, the charges were proper in each cause. That the same charges for journies had been allowed to the advocate for the pltffs., upon a former taxation, in each of his three bills, and ought also to be allowed to advocates who defended the same suits.
To which it was replied, that the cases were different. There the advocate was employed for a different client in each cause, and, therefore, had a right to charge a journey in each suit. But it was not so in this case, because the advocate was employed in every case for the same client ; and, therefore, lie could not charge that, at the same moment of time he took three journies, whereas, in fact, he took but one for that client.
The whole of the charges for journies was disallowed out of two of the bills.
DEEMSTER'S COURT,19th April, 1841.
DUMBELL for Pltffs.; ATTORNEY-GENERAL and HAINING for Deft.
Suit brought to recover the amount of a promissory note for £4 17s. payable on demand, and purporting to be " for balance of his account."
For the deft., it was objected, that the suit was premature, the pltff. having, on the same day the note was passed, given a written undertaking to the deft. to take the amount out in nails, the deft. being a nailer.
The document was as follows :-
"5th March, 1841."
"To Mr. James Dinwoody.
" In consideration of the promissory note given to Henry Alexander for £4 17s., I promise to take nails in the course of this summer equal to the amount specified.
Per pro. HENRY ALEXANDER, THOMAS BLACK."
It was argued, that this was a positive agreement to take the amount of the note in nails, and that the pltff. had no right to bring a suit for the money.
For pltff it was replied, that the two agreements were quite distinct, and might be separately enforced. The note was payable on demand, whereas the agreement was to take the amount in nails in the course of the summer. This could not restrict the pltffs. from recovering the amount of the note immediately; but no doubt they would be bound to take the same amount in nails if the deft. should continue in his trade, and be ready to furnish them in the course of the summer. The note was payable to order, and might have been endorsed to a third party.
Execution for the amount of the note with costs.
COMMON LAW, 12th May, 1841. HEYWOOD, D.
GELLING and QUAYLE for Pltff.; DUMBELL for Defts.
The pltffs. moved for a Jury of View to view the premises to which the suit referred.
Objected by the deft., that a Jury of View was not necessary in the cause. The suit was brought to recover an account for day-work done by joiners, and a Jury of View could not be required; the case must, of necessity, be proved by the witnesses.
Replied, for pltff., that Juries of View had been granted in similar cases. The declaration was filed to recover on a quantum meruit for work and labour done. A Jury of View was granted in the case of Fitzsimmons v. The Lord Bishop, in a suit respecting the same premises, and which suit was brought to recover the price due for the building. In the case of Christian v. Sandford, the suit was, the same as this, for joiners' work and labour done to a building; and a Jury of View was granted there upon motion of the pltff.
For deft. it was answered, that in both those cases a Jury of View was obtained without opposition; but if either party object, it can only be granted upon good cause shewn ; and there is not any cause shewn in this matter.
Per Curiam.-I cannot grant a Jury of View in this suit; there is not sufficient cause shewn. If I were to do it in this case, every pltff bringing suit "for work and labour" would require a Jury of View to see if his work was well done. In intricate cases of boundary, or where difficult descriptions of lands or houses have to be given, or the question turns upon some peculiar locality, there the jury, by seeing the premises, learn how to understand and apply the evidence when given; but, in this case, they could learn nothing more by a view, than by the evidence, which may easily be given at the bar of the court. I cannot, therefore, accede to the pltff's. request, as it would expose the parties to a most unnecessary expense.
17th May, 1841. HEYWOOD, D.
STEPHEN and QUIRK for Pltff. : DUMBELL for Defts.
The suit was brought to obtain the amount of an execution, in preference, out of the estate of Elizabeth Lewthwaite. Objected.-That the pltffs. had withdrawn their execution from the bands of the Coroner, and had thereby lost their preference. QUIRK, for pltffs.-Our execution was granted on the 8th June, placed in Cannell's, the Coroner's, hands on the 10th, and it remained in his hands after he went out of office at the usual time, (viz., on the 5th July,) until the 16th July. It was then put into the hands of the deft. on the 26th July, and was entitled to its preference before Cannell went out of office. Goods were arrested and appraised by Cannell, and the same goods were afterwards sold by Clucas the deft.
In the jury's return given by Cannell, it was stated, that there were no goods except what were required to pay the rent. Subsequently the goods appraised were sold, and fetched more money than would have paid the rent and pltffs'. demand ; and, therefore, he contended, the execution ought to be paid, in preference, out of the goods appraised.
For deft., it was argued, that the pltffs. had lost their preference by withdrawing the execution from the officer's hands from the 16th July to the 26th; because, in the meanwhile, other executions had been put into the hands of the deft., and, therefore, the pltffs., when they again enforced their execution by putting it into the hands of the deft., could, at least, only come in pari passu with the rest of the judgment creditors, whose executions were, as a matter of fact, in the present deft's. bands when the pltffs'. was in their own possession.
The Court did not allow the preference, and pltffs. obtained their dividend with the other creditors.
DEEMSTER'S COURT, 17th May, 1841. HEYWOOD, D.
DUMBELL for Pltff.; QUIRK, jun., for Deft.
Suit to recover £1 17s. 5d. for customs' rent due annually to the Lord Bishop out of the estate of Ballacregga, part of the Bishop's Barony, and 17s., the proportion of the price of a bullock, payable upon the installation of the Lord Bishop.
QUIRK, for deft., stated, that the question at issue would involve the interests of the proprietor of the lands, and that he must be made a party to the suit.
DUMBELL, for pltf, had no objection to consent to a continuance to make the proprietor a party, but not as a matter of right ; as it cannot be understood that the Sergeant of the Barony was bound to look for the proprietor of the estates out of which dues were payable ; he had only to see to the person in possession.
Deemster HEYWOOD.-The pltfl: is not bound to seek for the proprietor ; but, as he consents, the cause may be continued to make the proprietor a party.
1st June, 1841. HEYWOOD, D.
DUMBELL for Pltff. ; STEPHEN and QUIRE, jun., for Defts.
To recover 17s. the proportion of an ox valued at 40s., and payable out of the estate of Ballacregga, in Kirk Braddan, upon the installation of every Bishop. The deft. Curphey was the tenant, and deft. Crellin the proprietor of part of Ballacregga.
Objected by deft., that the fine was payable only upon the death, and not upon the removal of a Bishop ; and, therefore, the pltfl: had no right to recover, as the late Bishop, Dr. Bowstead, was only translated to another See.
DUMBELL.-The same question was settled in the matter of Matthias Curphey, Sergeant of the Bishop's Barony, against Edward Moore, the proprietor of Cooiingel, in October, 1829. Execution was then awarded against the deft. for £2 Manx, in lieu of a bullock to which the Lord Bishop became entitled upon his installation, as is expressly stated upon the face of the execution. In that case, Dr. Murray, the previous Bishop, was translated to the See of Rochester; however, as the right is now denied, I move for a continuance to prove it, and what is the proportion of the 40s. Deemster HEYWOOD.-The question was agitated and supposed to be settled many years ago. The pltff may have a continuance.
1st July, 1841. READY, G.
Quls$ for Pltff.; CORLETT for Deft.
This was an application, by petition, praying that a writ of con-tempt, under which the petitioner was then a prisoner, might be quashed, for informality in the certificate upon which it had been issued.
It appeared, that, in the month of March, 1841, Corlett, the present deft., obtained his Honour Deemster Christian's judgment against the present petitioner, ordering and directing him forthwith to remove a gate or obstruction put by him across a certain road or way claimed by the said deft. Corlett. The Coroner of Michael Sheading served the order upon the petitioner Nelson, and afterwards gave a certificate to the deft. Corlett of his refusal to comply with the said order. Upon that certificate a writ of contempt had been obtained from the Rolls' Office, and the petitioner was imprisoned.
The present application was brought to have the contempt quashed upon the ground that the certificate was informal ; inasmuch, as it did not state that the order had been served upon the petitioner in the presence of two witnesses ; nor was the said order, in point of fact, so served upon the petitioner.
Upon these grounds the Court held the certificate informal, and quashed the contempt.
19th July, 1841. HEYWOOD, D.
DuMDELL for Pltff. ; WILSON for Deft. Suit, by warrant, to recover the amount of a bond.
Objected, for deft., that he was not duly summoned. He had gone to live, for some time previous, in Ramsey, and was still living there. During his absence, summons was left, at his house in Kirk Braddan, with the servant who had the care of the house, but the deft. had no notice of it.
Per Curiam.-The summons is sufficient. It was the duty of the servant to let his master know of the summons; merely removing for a few days to come back to his permanent residence again, does not make a left summons at his usual place of abode insufficient.
5th Aug., 1841. READY, G.
KINLEY for Pltff. ; LAMOTHE for Deft.
This was a petition, stating, that, on the 11th of April, 1839, the deft., then a minor, had bound himself, under articles, to serve as an apprentice for seven years, which, on coming of age, he had refused to complete, and left the service of his master, the present deft., for which he was afterwards imprisoned by an ex parte order of Deemster Christian, upon the usual affidavit of the master. The petitioner prayed that the order of the Deemster might be quashed, or otherwise that the petitioner might be maintained by the deft. who had imprisoned him.
Objected.-That the merits of the order of imprisonment could not be gone into before the Governor. If the order was wrong, that should be inquired into, by petition, before the Deemster, under an application to him heard in open court ; and, if his judgment upon such petition should be objected to, then it could be brought into this court by appeal, but not otherwise.
Objection held good.
5th Aug., 1841. READY, G.
CORLETT for Pltff ; QUIRK, jun., for Deft.
Application, by petition, to quash an action taken out by John Killey, the present deft., upon an affidavit against the petitioner, who is a native of the Island.
The statement made in the affidavit was " that the said Robert Milburn intends shortly to leave this Island, as the deponent apprehends and believes."
CORLETT, for petitioner, argued, that the affidavit was insufficient, whether the petitioner was a native or not. If he was a stranger the affidavit should have stated it. If he was a native, as the fact in this case is, then, by the practice of the court, the affi-davit should state that the deponent had been informed by some one, mentioning the name and address of the informer, and verily believed that the debtor was going to leave the Island.
Held that the affidavit was insufficient, and action quashed.
NOTE.-The justice of this practice is obvious, for then the imprisoned debtor had ample means of redress. He could test the truth of the information by examining the informer at the bar of the court. if no such information had been given, the action would be quashed, the debtor released, and he would have his remedy by action against the pltff for the false imprisonment. Or if the information given was false and malicious; the action would, in like manner, be quashed, and the debtor would have his action against the inform-ant.
INSOLVENT DEBTOR'S COURT, 6th Aug., 1841.
QUIRR, jun., for Defts.
Objected, that the petitioner had not duly inserted the names of his creditors in his schedule, or given them proper notice, where-by they might know they were interested, and might prepare to oppose his discharge.
It appeared that several persons names were inserted on the schedule as Mr. and Mrs. A. B., without any Christian name or other description for distinguishing them from any other of the same surname. The certificate of the summons was of the same description.
HELD. That the schedule and certificate were insufficient, and the debtor was remanded.
INSOLVENT DEBTOR'S COURT, 6th Aug., 1841.
BLUETT for Pltff. ; QUIRK, jun., for Deft.
A similar objection was taken in this case as in Comish's, viz., that the Christian name of the creditor was not inserted in the schedule.
Replied, for the insolvent, that, although the Christian name of the creditor was not known to the insolvent, and, consequently, not put in his schedule; yet, the trade and residence of the creditor were inserted in the schedule, so that there could be no doubt of the identity of the creditor, and that he had received due notice, because the certificate of the summons agreed with the description in the schedule.
This case was permitted to proceed, under the circumstances of the trade and residence of the creditor being specified; the Court " intimating that more correctness would be required for the future.
14th Aug., 1841. HEYWOOD, D.
DDMEELL for Pltff. ; CRAIGIE for Deft.
This was the second court day, and a motion to continue the cause was made on behalf of the deft., upon the allegation that a witness had been summoned, but was in contempt. Evidence was given that a warrant had been taken out and forwarded to the Coroner; but no evidence was adduced of the witness having been actually summoned.
Objected, that the cause had been already continued at the in-stance of the deft. at the last court, and could not be again continued, unless the certificate of the witness having actually been summoned was produced in court, on which to grant a presentment.
Motion for continuance refused.
4th Nov., 1841. READY, G.
CRAIGE for Pltff.; DUMBELL for Deft.
Upon the petitioner's application for maintenance, the detaining creditor had summoned the postmaster of Douglas as a witness, and proceeded to examine him as to whether he had or not then in the office a letter addressed to the petitioner, and advice of a post-office order for money to be paid to him, which the petitioner had not yet claimed.
The witness appealed to the Court whether he was bound to answer these questions, being sworn to keep the secrets of the Post-office.
Deemster CHRISTIAN.-You may answer whether there is a letter for the petitioner in the office ; and I think you may say whether you have advice of a post-office order for the petitioner, but you are not called upon to go any further.
11th Nov., 1841. READY, G.
Pltff. in Person; CLUCAS for Defts.
This was an appeal from a judgment made by Deemster Christian.
Robert Corlett and wife, on 22nd October, 1828, settled the lands in question upon Robert Corlett, jun. In December, 1837, Corlett, jun., and his wife, settled the property in trust upon Wm. Stephen. In June, 1833, Stephen and Corlett sold the lands to the applnt., subject to a deed of bond and security for £E71 granted in 1827. Upon this deed execution had been granted against the applnt. and the original grantor, to be enforced against the said grantor, and the lands given in security. The execution was complained of, because the applnt., having purchased land subject to a mortgage with a bond to it, was not liable to anything but the mortgage, which could not be recovered, according to the law of the land, under twenty-one years. The applnt. being no party to the bond an execution could not be granted against him; but, if he neglected to pay the interest, pltff. might then take an order of possession of the lands, but nothing more.
CLUCAS.-The execution is properly granted. The lands are intack lands, and liable, by the law of the land, to be sold for debt. It cannot be argued that a mortgagor can defeat the claim of the mortgagee to sell the intack lands given in security, by transferring them by sale to another man. The purchaser can only take them subject to the mortgage, and all the legal consequences of it. The execution is directed to be enforced against the grantors and the property given in security, but not against any other property be-longing longing to deft.
LAMOTHE, in reply.-In the case of John Logan v. William Moore, heard before Deemster Christian in 1836, it appeared, that John Lace had granted a security to the deft. Logan upon his quarterland estate of inheritance. Lace afterwards sold the lands to Moore, subject to this security. Logan afterwards brought his suit against Moore to obtain an execution for the amount of the mortgage, but the Deemster refused to grant it.
Deemster CHRISTIAN.-In Logan's case the land was a quarterland estate of inheritance ; but here the lands are intack, and liable to be sold for debt.
Judgment affirmed, and appeal dismissed with costs.
23rd Nov., 1841.HEYWOOD, D.
GELLING fox Pltffs.; BLUETT for Deft.
Suit brought for £43, the amount of account.
The cause was heard before, and the debt admitted, subject to a claim for a deduction of one penny per foot.
The deft. called for the pltff's. account to prove his deduction. The pltff. moved for a continuance to produce it.
Deft. objected, that, this being the second day, pltff. was bound to come prepared, and could not be entitled to a continuance, except on payment of the costs of the day.
Objection held" good and cause continued on payment of the costs of the day.
23rd Nov., 1841. HEYWOOD, D.
GELLING for Pltff; BLUETT for Deft.
To recover £34 the amount of an alleged account.
The deft. asked to see the account; the pltff. not having the account moved for a continuance.
Deft. moved for the costs of the day.
Per Curiam.-The deft. must have the costs of the day ; the pltff. must always have his account in court, or how is the court to know the nature of the debt, or the deft. to know if it be correct.
Continued on payment of the costs of the day.
23rd Nov., 1841. HEYWOOD, D.
BLUETT for Pltff; QUIRK, jun., and HAINING for Defts [fpc - they were minister + trustees ? of Atholl St Independent Chapel].
This suit was brought to obtain an order of possession of certain lands given in security, the interest thereon being in arrear.
Upon the part of the deft., it was argued, that the pltff. was not entitled to an order of possession, because a tender of the interest had been made, and, by the old practice, a mortgagee could not obtain an order of possession without an execution, and a jury's return for the interest.
For pltf, it was replied, that it had been the practice for many years to obtain an order of possession upon the simple ground that the interest was in arrear. That as to the question of tender, it had been ruled, that a tender made after summons was not sufficient to stay, an order of possession.
Per Curiam.-The practice is now settled, that whenever interest is in arrear, an order of possession passes as a matter of course; and it would be injurious to unsettle that practice. As to a tender, you may have a continuance, if you wish it, to prove the time and manner in which it was made.
Continued at defts.' instance to prove the time of tender.
2nd Dec., 1841. READY, G.
STEPHEN for Pltffs. ; QUIRK and DUMBELL for Defts.
This was a petition of the deft. Edward Cain, to have his answer (now on the file) received, notwithstanding that a rule pro confesso had been obtained, served, and the time limited had ex-pired, before the answer was put in. The application was made upon the ground, that the answer having been put in before any court intervened, the complnt. bad not been put to any additional expense, which is all the Court could consider had a special application been presented before the filing of the answer.
There was also a counter petition, upon the part of the complnt., to have the answer taken off the file, it having been irregularly put there.
For the deft., Edward Cain, it was alleged, that the Court would not prevent an answer being put in where the bill prayed for it, but even when a rule pro confesso had been made absolute, the Court, upon payment of costs, would allow the answer to be put in. And in the case of Harrison v. Gelling the Court allowed an answer to be put in after rule pro confesso made absolute, upon payment of twenty shillings costs. The petition of the complnt. was altogether unnecessary, and ought to be dismissed with costs.
For the complnt., it was alleged, that the answer having been put on the file irregularly, it must be taken off, as, according to the practice of the court, before the answer could be put on the file, the costs must be tendered; and complnt. relied on the general rule in such cases.
Per CLERK of the ROLLS.-It is not the practice to tender costs ; the Court awards them if necessary.
COURT MINUTE.--Answer to remain on the file on payment of £1 costs. Scarff's petition dismissed with ten shillings costs.
CHANCERY COURT, 2nd Dec., 1841.
KELLY for Pltff; DUMBELL for Deft.
Upon a former day a jury had been appointed to examine into and report upon the state of mind of A. B. The jury had seen the alleged lunatic, had taken evidence, and were satisfied he was of un-sound mind, and were now in court to return their report in writing.
Objected, upon the part of the deft., the next of kin, that the evidence given before the jury had not been committed to writing; and, therefore, the report could not be received, as the written evidence, by the practice of the court, must be recorded with the re-port, so that those interested may inspect it.
The Court held the objection good and refused to receive the report. "
HOUSE of KEYS, 27th Jan., 1842.
BLUETT for Pltft:; CORLETT for Defts.
A suit had been originally brought in the Deemster's Court by the present respndt. to recover the amount of a promissory note long since granted by the present applnt. and one Mathias Curphey. Upon the hearing of that cause the present applnt. pleaded that the note was passed in June, 1827, and in the November following he had taken the benefit of the Insolvent Act, and made the then Presidents and Stewards, parties to the schedule on account of the debt now claimed, and that the Insolvent Court had discharged him and his future property and effects.
For pltffs it was answered, that the deft., after his discharge, had promised to pay the debt; and two witnesses were examined who proved the promise.
To this it was replied, that there was no new consideration, and, therefore, the promise was void.
The Court held that the original debt was a sufficient consideration for the subsequent promise, and granted execution for the debt with costs.
From this judgment the deft. Kelly appealed to the Staff of Government, and that Court, upon a hearing, reversed the Deemster's judgment, and referred the matter to a Court of Common Law.
At Common Law.
The pltffs. filed their declaration, and upon the cause coming on to be heard next term, the pltffs. exhibited, duly certified by the Deemster, a copy of the Deemster's minutes of what one of the witnesses had sworn before him in the court on the former occasion, the witness being since dead.
Objected, that the Deemster's minutes were not evidence without being proved upon oath.
Replied, that the same evidence was used on the hearing of the first appeal to the Staff of Government, and was properly produced now.
The Court overruled the objection, and received the evidence.
The cause was then heard, and the jury returned a verdict against the deft. for the amount of the note with interest and costs. From this judgment the deft. himself entered his appeal to the House of Keys.
A petition was also presented to the Governor, as head of the Common Law Court, to have the evidence objected to struck out of the pleadings. This petition came on to be heard on the 20th January, 1842 ; and, after argument, the Court, without deciding the point of the admissibility of the evidence objected to, dismissed the petition with costs, a traverse having been entered to the Keys by the deft.
Upon the hearing before the Keys on the 27th Jan., 1842.
BLUETT, for the applnt.-The respndts. claim a debt of £30 on a promissory note. The applnt. says it is discharged by the operation of the Insolvent Act. The respndts. say applnt. promised to pay the debt afterwards ; to which, applnt. replies the promise was void for want of consideration. Respndts. to that answer, the promise equally revived the old debt, whether barred by the Statute of Limitations or the operation of the Insolvent Act. There is a wide difference between the effect of the Statute of Limitations, and the discharge of a man under the Insolvent Act. In the former case, the statute, to prevent frauds and perjuries, will not allow a pltff who sleeps upon his claim for three years to maintain his suit. The law presumes that the deft. may have settled the demand, and lost his evidence to prove it. But in such a case the deft. does not in point of fact do anything to entitle him to a discharge from the debt. The statute is based upon the presumption that the debt has been paid, and in such a case it is perfectly consistent with justice and common sense, that if the debtor promises to pay a debt barred by the statute, the presumption of law is destroyed, and the original debt is then held to be a good consider-ation for the new promise. But the case is very different in reference to an insolvent discharged by the act of the court having the power to grant such discharge. What is a good discharge of any obligation to pay money is entirely a question of law. In most cases twenty shillings in the pound is sufficient. In other cases it requires twenty shillings and interest ; but in the case of a bill of exchange, it depends upon the holder's conduct. If duly noted and protested, it would require interest as well as principal, together with expenses of noting and protest, to discharge the obligation ; whereas, if these forms are neglected, 20s. in the pound would be sufficient. Under the Statute of 1830, sec. 44, a filie of £5 in money would be discharged by an imprisonment of three months. And so under the Statute for Relief of Insolvent Debtors, if a debtor is bona fide a prisoner for three months, and gives up all his property and a satisfactory account of his effects, by the judgment of the Court, he and his future effects are as much discharged as if he had actually paid the debt; and any subsequent promise to pay this debt, unless there was a new consideration for it, would be absolutely void. Were it otherwise, the act, instead of being for the relief of insolvent debtors, would operate for their oppression. They would continually be liable to be tricked into promises to pay the debts they were discharged from; and then all their sufferings of imprisonment and ruin, by which they had paid in person if not in purse, would go for nothing.
CORLETT, for the respndt.-It is not necessary to answer all the arguments of the applnt. The subsisting debt being actually un paid, is a sufficient consideration for the new promise. It has been frequently ruled that a subsequent promise to pay, revived a debt previously barred by the Statute of Limitation; and the same principle ought to apply to the debtor discharged by the Insolvent Act; for the debt was no more paid bona fide in the one case than in the other. The evil suggested by the applnt. cannot now arise, be-cause the recent statute requiring a promise to be in writing, the insolvent would be protected.
BLUETT.-That statute only refers to amounts above £5, and the great bulk of debts on insolvent schedules are below that sum. Verdict affirmed, and appeal dismissed. 28th Jan., 1842.
HARTWELL, V. G.
KINLET for Pltff. ; CRAIGIE for Deft.
The suit was brought to affiliate an illegitimate child, and re-cover the balance of an account for the following three items, viz. lying-in expenses, stated at £3, maintenance £4, as alleged to be due under special agreement, and 10s. for clothes, giving credit for £5 10s. already received.
Objected.-That the Court could only allow the usual sum of £3 for maintenance ; that if the pltff relied upon her agreement, she must sue in the temporal court; that no sum could be allowed for clothes, the £3 including everything.
For pltffl: it was argued, that although this Court had a cognizance of the maintenance, it was competent to the parties to agree amongst themselves as to the amount, which is all they have done in this case, the clothes are as necessary for the child as food and lodging.
Per Curiam.-I can have nothing to do with the agreement, and can only allow the usual sum of £3 for maintenance, which includes everything.