[from Advocate's Notebook, 1847]
3rd Feb., 1842. READY, G.
LAntOTHE for Applnt. ; CORLETT and CLUCAS for Respndt.
The suit was brought in the court below to recover the amount of a bond and security or mortgage, dated the 23rd Nov., 1818, granted by Charles Sayle to John Cormode. The suit was dis missed without: prejudice to the parties proceeding at law, if advised, and from this decision the appeal was brought.
A preliminary objection was taken as to evidence.
In the court below the Deemster permitted the respndt. to produce a ledger kept by Isabella Kissack, a former proprietor of the premises in dispute, purporting to contain a statement of the security in question having been assigned to her.
Held that it could not be received in evidence.
Urged then by applnt., that, by his deed he was entitled to obtain an execution for his mortgage money, unless it was proved to have been paid.
For the respndt., it was replied, that the bond was passed twenty-four years ago, and might have been sued for at any time. That during the lapse of time the property had frequently changed hands, and finally came into the hands of the deft., by purchase, for a full, fair, and valuable consideration. The bond had lain dormant until now, and, therefore, the Deemster had done well to refer the parties to law. Sayle was no party to the original deed, and the original mortgagor was no party to the present suit.
For applnt.-It has not been the practice for many years to make the mortgagor a party, and the late act does not appear to require it, but merely refers to the "mortgagor or person entitled to the equity of redemption." Any subsequent purchaser can therefore purchase only the equity of redemption. The holder of the bond and security may look after either the personal obligor or the holder of the land, but he cannot be bound to sue both. The original mortgagor may be a pauper, or have fled the land. The lapse of time is no obstacle. The law that says you may obtain execution in twenty-one years, does not say you shall not obtain execution after twenty-three years, or any other number. The suit was, therefore, well brought in the court below, and the applnt. was well entitled to execution to be enforced against the land, and ought not to be sent to Common Law.
COURT MINUTE. Judgment reversed, without prejudice to the respndt. seeking redress in equity.
COMMON LAW, 8th Feb., 1842. HEYWOOD, D.
QUAYLE for Pltffs. ; DUMEELL for Deft.
Objected that there was no summons in the name of " Thomas," which was necessary, as there were many Muncasters.
Two witnesses were examined; one of them would not swear whether the deft. was charged in the Christian name of the pltff or not; but the Coroner read out the warrant. The witness did not himself read the warrant, and cannot say whether the Coroner read the warrant correctly or not. An hour afterwards, the deft. said the Christian name was not mentioned, and asked if he could swear it; and deponent then said he could not, and deponent cannot do so now. The other witness said, to the best of his recollection, the name " Thomas" Muncaster was mentioned, but he was not sure.
Pltfl: moved to examine the Coroner to prove he read the warrant correctly.
Objected by DUMBELL, that the Coroner was not a witness. The same points were decided in William Watson Christian v. John James Moore. There neither of the witnesses could remember the Christian names of the deft. ; and Deemster Christian refused to allow the Coroner to be examined.
Per Curiam.-The law strictly requires two witnesses to prove the summons, and, of course, it is necessary that both Christian and surname should be proved. The Coroner cannot be a witness.
Pltff then moved that the cause should stand continued, due diligence having been used.
DUMBELL, for deft.-There can be no objection as this is the second day, and the,delay is not from any fault of the pltffs. ; but had it been the first court the declaration could not have been filed. Held that the summons was not sufficiently proved, but that the cause might stand continued.
COMMON LAW, 8th Feb., 1842. HEYWOOD, D.
MOORE for Pltff. ; GELLING for Deft.
This was the first court day, and the pltff. having called the two witnesses to prove the summons; on examination, neither of them could prove the name of the pltff. Moore.
Per Curiam.-The summons must be proved by shewing the pltffs'. and defts'. names. If there had been many persons of either pltffs. or defts„ so that the deft. could not recollect their names, I would allow him to refer to the warrant if he could identify it; but in this case the warrant is not in court, and the witness cannot state the pltff's. name, there is, therefore, no proof of the summons and the declaration cannot be filed.
14th March, 1842. HEYWOOD, D.
GELLING for Pltff.; DUMBELL for Deft.
This suit was brought to recover one year's interest due upon the following note, viz
" £90 0 0
" Four years after the date hereof, I, William Quilliam, of the parish of Braddan, do promise to pay unto John Bridson, of Malew, the sum of £90, British, for value received, with
interest thereon at the rate of £4 15s. British, per cent. per annum, from the 12th November 1840, until paid. Witness my hand, this 10th day of December, 1838."
" WILLIAM QUILLIAM."
" Witnessed by Wm. Këwley."
Objected by DUMBELL, for deft., that nothing was due. There was no promise to pay anything until four years after the date, and therefore they could not sue for the interest.
GELLING, for pltff, argued that by the note the deft. had bound himself to pay interest on the principal money at the rate of £4 15s. per cent. per annum, until paid, and therefore the annual interest could be recovered, though the principal of course could not until the four years' end.
DUMBELL.-The interest is not made payable per annum, but it was necessary, as less than legal interest was to be taken, to specify the rate per annum at which the whole was to be finally settled. The promise is entire, four years after date, to pay £90, with interest at the rate of £4 15s. per cent. per annum, and that not from the date of the note, but two years afterwards.
Cur. ad. volt.
The Court, after taking time to consider the case, gave judgment in favour of the deft.
21st March, 1842. HEYWOOD, D.
QUIRK, jun., for Pltff.; HOWARD for Defts.
To recover £1 19s. 6d. a debt due by Cubbon and bailed by Quayle.
Objected, by deft. Cubbon, that he was summoned out of his district, as he resides in Kirk Lonan, which was in the Northern District.
Replied, by QUIRK, that the other deft. resided in the Southern District, and it was at the option of the pltff:; where two defts. in one cause resided in different districts, to bring his suit in either; and in this case the pltff. thought it right to shew the preference to, the bail.
HOWARD.-The principal is the only person who can make a. defence to the suit, and he ought to be sued in his own district. Per Curiam.-The pltff may sue in either district at his option.
DEEMSTER'S COURT, 4th April, 1842. HEYWOOD, D.
BLUETT for Pltff.; DUMBELL and HARRISON for Defts.
This suit was brought to recover £9 10s., one half-year's rent due out of premises held by deft. Woods, under a letting from the pltff.
Daniel Teare, since deceased, being entitled, by purchase, to the house in question, by his will bequeathed it to the deft. Daniel Teare, jun., to be possessed by him after the decease of Esther, wife of the grantor. In a codicil he directs, that after his wife's death, William Tear and Elizabeth his wife were to receive the rents of the house until Daniel Teare arrived at the age of twenty-eight years. Esther Teare survived her husband, and enjoyed the property for life, and then made her will (having a right to one-half the house in question) whereby she bequeathed to the said Daniel Teare, jun., all her right and title to the said house,and be possessed and enjoyed by him when he arrived at the age of twenty-eight years. After other bequests she appointed William Teare and Elizabeth Teare executors and residuary legatees, and then directed that the issues and profits of the several bequests to the children of the executors should be for their use until their children severally arrived at the age of twenty-one years. Esther Teare died, and then William Teare died; and Elizabeth Tear, who survived her husband, continued to receive the whole of the rents, issues, and profits of the premises. Daniel Tear, jun., having become embarrassed in his circumstances, executions went against him, and his right and interest in the premises were sold by the deft. Clucas, the Coroner. The pltff. Ewan Clark became bail for Elizabeth Teare when she obtained probate of the will of Esther Teare ; and, in order to secure him from his responsibility, Elizabeth assigned over all the rents of the house in question to the pltff, with authority to sue for them in his own name; and accordingly he now brought his suit for the rent due in February. It further appeared that Daniel Teare, jun., was twenty-eight years of age on the 28th March, 1842.
For pltff. it was argued, that, under the will of Daniel Teare deceased, pltff was entitled to one half of the rents of the house in question, the deft. Daniel not being twenty-eight years of age until after the rent became due. That upon the will of Esther Teare there was an apparent contradiction, for although, by the bequest in the body of the will, Daniel Teare was to possess and enjoy the property when he arrived at twenty-eight years of age, yet, in a subsequent part of the will, it was directed that the rents, issues, and profits of the houses bequeathed in the will were to go to the executors until the said children (Daniel being one of them) should attain the age of twenty-one years, yet as the rents between the time of the deft. arriving at twenty-one and twenty-eight years of age, were unappropriated they would sink into the residue of the estate, and become the property of the residuary legatees, and, the executors being so, the pltff was entitled to them in right of the surviving executor.
For deft. it was argued, that under the will of Daniel Teare, the pltff could only be entitled to one quarter of the rents, because the bequest was jointly between William Teare and Elizabeth Teare, but not the survivor, and, therefore, upon the decease of William his interest ceased, and Elizabeth could only have one quarter of the rents. That under the will of Esther Teare, the interests which the executors took was limited to the time of the deft. Daniel becoming twenty-one years of age, but from that time until he became twenty-eight years of age, the rents were not appropriated, and therefore they must belong to the heir, but under no circumstances could the executors get the rents for the unappropriated seven years, as under the residuary bequest they could only take the personal estate.
The. Court, after holding the case under consideration, gave judgment for the pltff for the whole of the rents.
Execution for £9 10s., without costs.
CHANCERY COURT, 7th April, 1842. READY, G.
LAMOTHE for Pltff
Petition ex parte to have report of a jury received, touching the state of mind of Thomas Christian.
DUMBELL, for Joughan, claiming interest, and a right to be heard, as having purchased some lands from Thomas Christian, objected to part of the report, which stated, "that the said Thomas Christian had been of unsound mind for twenty years last past." The commission only authorised the jury to inquire into the present state of mind of the party; and, therefore, he moved that the words referring to the past state of mind of the alleged lunatic be struck out. Moreover, it did not appear that any medical man had been examined by the jury touching the state of mind of the said Thos. Christian.
Per CLERK of the ROLLS.-It is not necessary, generally; but on cause shewn, a medical man would be ordered.
LAMOTHE. In the case of Elizabeth Sayle, (Chancery petitions, 1828), a similar verdict was returned by the jury, and was received by the Court.
DUMBELL.-That may have been by consent of parties, but now it is resisted.
The Court ordered that the words objected to be struck out, and received the report so amended.
15th April, 1842. HARTWELL, V. G,
A petition praying probate of the will of Mary Redfern, with the will of John Redfern annexed.
It appeared that John Redfern died in April, 1841, having made his will and appointed the said Mary Redfern his executrix. She died before proving the will of her husband, and having made her own will, whereof she appointed the petitioners executrixes. Proof was given of the due execution of both the wills, and the petitioners were sworn in accordingly in terms of the prayer of the petition.
CHANCERY COURT, 7th April, 1842. READY, G.
QUAYLE for Pltff.
This was an application upon behalf of the complnt. (styled in a cause pending in Chancery by bill) praying for substitution of service on James Heighton, father of the deft., who resided on the premises in dispute, and managed the same fox deft., his son, who resided off the Island; or for service in such other way as the Court might direct. In the case of Morrison v. Ray and others, in Feb., 1839, the Court ruled " that service be made in Liverpool, and affidavit of the service be made before the Mayor of Liverpool," and the same was ruled in Taggart v. Bibbey and others. In Allison and Gelling v. Milburn the Court ruled " that affidavit of service on deft. in Liverpool would be considered good service."
CLERK of the ROLLS.-If James Heighton acts as his son's attorney, he should be summoned under the petition, and then the Court can make an order.
Continued to notice James Heighton.
25th April, 1842. CHRISTIAN, D.
CLUCAS for Pltff: : STEPHEN for Deft.
Suit to obtain execution for the amount of the verdict of a Trespass Jury.
The jury had, by their verdict, "found that the deft. had by his sheep been eating and destroying the pltff's. turnips, and otherwise frequently trespassed, which trespass they estimated at two shillings and sixpence." The word wilful was not used in the verdict ; nor did they find in words the damages to be paid fourfold.
CLUCAS moved for execution for £1, with costs ; that is, two shillings and sixpence fourfold, and ten shillings extraordinary damages.
STEPHEN objected to an execution being granted for more than two shillings and sixpence singly; and, according to a rule frequently observed by his Honour, with no more costs than damages, the damages being trifling in amount. It is not competent for the Court, under the statute, to quadruple the damages found, nor to add the sum of ten shillings extraordinary damages, when the jury had not expressly found those damages to have been wilful. The finding of " wilful damage" is essential to the jurisdiction of the Deemster to increase the damages, or to add the ten shillings extraordinary damages. It would be inconsistent with the attention paid by courts to the verdict of a jury, to put a construction on that finding, which is peculiarly the province of the jury. In short, the word "frequent" is not synominous with " wilful," and the Court cannot intend more than the jury have expressed. Indeed, as to quadrupling of the damages, it might be contended, perhaps, that the jury must expressly find it so ; and it is the practice for juries, in such cases, to add, "we leave the deft. to pay the sum fourfold." But, at all events, the Court cannot construe the word "frequent," in the jury's verdict, to intend "wilful."
CLUCAS, in reply, contended, that it was for the Court alone to say whether the damages found by the jury should be levied fourfold, with ten shillings extraordinary damages. The jury had nothing to do with finding the fourfold, nor with the awarding of the ten shillings extraordinary damages.
Deemster CHRISTIAN.-I am of opinion there is enough stated upon the face of the verdict to warrant my granting an execution for twenty shillings with costs.
2nd May, 1842. HEYWOOD, D.
Pltff in Person; CRAIGIE for Deft.
This was an application to have the deft. ordered to pay the sum of £2 14s. 6d., being certain expenses incurred in maintaining and removing ten paupers, landed from the boat "John and David," of which deft. was the master. It appeared that on the 27th day of April, deft. brought over to Douglas, in the vessel of which he was the captain, ten paupers.
Information having been given to the High Bailiff of the town, he caused them to be arrested, and called upon deft. to give security for their removal, whereupon the deft. gave the following undertaking
" I hereby promise and engage to pay to James Quirk, Esq., High Bailiff of Douglas, whatever costs and expenses he shall incur in maintaining certain paupers, being ten in number, which I brought over in my vessel from Whitehaven to this Island this day; and I also promise to pay the costs and expenses that the High Bailiff may also incur in sending the said paupers back to England. Witness my hand, this 27th April, 1842.
"CHARLES CRELLIN, his x mark." "Witnessed by H. B. Watts."
The maintenance of these paupers in the Island cost 19s. 6d. ; and £1 15s. was paid for their removal in the steam packet, and the suit was now brought to recover the amount from the deft.
CRAIGIE, for deft., argued that the captain of the vessel had not infringed any known Statute Law. The parties were not vagrants, nor could be said to have committed any act of vagrancy; they were able-bodied men looking for work, and able to pay their passage money, and there is no law to prevent their coming to this Island under such circumstances; and as to the written agreement, it was obtained by coercion, and could not be enforced.
Pltff; stated that he had adopted the mildest course of proceeding. He might have detained the whole vessel and cargo, and sent them back just as they came.
Per Curiam.-The question before me is simply upon the written undertaking and the amount actually paid. These being proved, I have nothing further to inquire into. The High Bailiff, if he had thought proper, might have taken a very different course. There are two kinds of law-a Common Law as well as a Statute, and by the Common Law of the land, the High Bailiffs have always lawfully and properly exercised their authority in sending paupers out of the Island at the expense of the parties who bring them into it ; but that question is not before me now.
Evidence was then given to prove the facts stated, and the Deemster granted execution for the whole amount claimed.
COMMON LAW, 10th May, 1842.. HEYWOOD, D.
CRAIGIE and QUAYLE for PRff. ; QUIRK, jun., and BLUETT for Defts. Upon this cause being called on in the usual course, objection was taken that the principal deft. had not been summoned. Replied, that Gibbings was off the Island, and inquiry had heen made for him at his last place of abode, and not being found, Abbott, one of the bail, was summoned.
The court witnesses were then examined, but could not prove any thing in regard to Gibbings.
CRAIGIE then moved to examine the Coroner to prove that he inquired for the deft., and was informed he was absent; and, therefore, they summoned Abbott the bail, Crelly, the other bail, being off the Island, and, in fact, dead.
Objected, that the cause being at issue, the summons could only be proved by the two court witnesses, and their testimony could not be helped out by any other person.
Per Curiam.-If the object of the pltff. be to prove such a case as will entitle him to go to trial, the cause being at issue, I cannot allow any but the two court witnesses to be examined; but, if the pltff. merely wants to skew that he is entitled to a continuance of the cause, having used due diligence, but in vain, to effect the summons, then I will allow the Coroner to be examined for that purpose.
The Coroner was accordingly sworn, and proved that he had made inquiry for, and searched after the deft. at his last and usual place of residence, as he understood, and was there informed he was off the Island, as well as Crelly the other bail.
The Court held the evidence sufficient to entitle the pltfl: to continue the cause, but the deft. afterwards waved the point and agreed to go to trial.
COMMON LAW, 10th May, 1842. HEYWOOD, D.
Pltffs. in Person; CORLETT for Deft.
The Great Inquest presented the deft. for having enclosed a part of the commons.
CORLETT, for deft., took the opinion of the Court as to whether the presentment could be received by his Honour. The facts were, that the deft's. property adjoined a part of the lands belonging to the Crown, and under the control of the officers of the Board of Woods and Forests. The fence being out of repair, and very irregular, the deft. made application to the Board, and they gave authority to the Crown Agent to settle the boundary. This was clone accordingly, and the presentment was for enclosing those parts which were taken in, in straightening the fence, so that the presentment was, in fact, against the lord himself.
Per Curiam.-I cannot refuse to receive the presentment; but the deft., if aggrieved, must make his application to the Governor, who will order the matter to be inquired into before the Deemster in the usual course.
16th May, 1842. HEYWOOD, D.
The suit was brought to recover £25, for one quarter's rent, due on the 12th day of May instant.
It was objected, that the rent was demanded on the 12th, and, not being paid, the summons was made on the same day, whereas the rent was not due on that day, and, therefore, the deft. ought not to have been brought into court, and pltfl: must therefore pay costs. Per Curiam.-The tenant has a right to the whole day to pay his rent in ; and if payable on the 12th, it is not in fact due, so as to be sued for, until the next day. The suit is premature, and must be dismissed.
16th May, 1842. HEYWOOD, D.
DUMBELL for Pltft;; BLUETT for Deft.
The pltf. applied to have the deft. fined for not having sent a man to the high-roads, as bound to do by virtue of his occupancy of a certain tenement in the town of Douglas, due notice having been given to him in terms of the act.
BLUETT, for deft., admitted the notice; but stated that his client required the opinion of the Court as to his liability under the circumstances. It appeared, that the deft. had, about twelve months ago, purchased a house with a yard thereto. That in the yard were certain buildings of two stories high attached to the house and under the same roof, the entrance to which, on both stories, was from the same house; the said buildings being, in fact, only a part of the house. After the deft. bad purchased the premises he divided the buildings in the yard into three small tenements, but all under the same roof as before; each tenement had its own separate entrance door opening into the yard. Deft. occupied one of the tenements, and the other two, as well as the principal house, were occupied' by other tenants ; but there was only one common entrance for them all, through the door way to the yard, and deft. submitted to the Court whether such tenants could be looked upon as any more than lodgers, and consequently not liable to contribute separately to the high-roads.
DUMBELL, for pltff., relied upon the two cases of John Fell, of the North Quay, and James Sharp, of Factory-lane, in Douglas. In both these cases the premises were once held as one house, but being subsequently divided, and occupied by different tenants, with separate entries, each division was held liable as a separate house.
BLUETT, for deft.-In those cases the houses and their various entries all fronted to, and opened upon, the street; but, in the present case, the premises in question are in the yard of the main dwelling house, with only one common entry from the street.
Per Curiam.-I cannot see any difference in the cases. It is admitted that each tenement is separately occupied, and has its own separate entrance door ; they must, therefore, every one of them perform their high-road labour; but, under the circumstances, if deft. undertakes to perform the labour, and pay the costs, it will (if the pltff. consents) be sufficient.
16th May, 1842. HEYWOOD, D.
BLUETT for Pltfrs. ; DUMBELL for Deft.
Suit was brought to recover the amount of an execution and costs granted upon an action, sued out of the Court of Chancery, against Alexander Me. Kenzie. An arrest having being laid upon the deft. of all money in his hands due to the said Me. Kenzie, first of all by the constable under the action, and afterwards by the plot. under the execution.
DUMBELL, for deft., objected, that the deft. ought to have been examined before a jury, instead of being brought into court. BLUETT, for pltf , replied, that part of the case was to be proved by a witness, and part of it only by deft's. oath, it was therefore necessary to bring the deft. into court.
DUMBELL, for pltff, objected that the suit ought to have been brought in the Chancery Court, as the arrest subsequently laid by the Coroner was laid under the Governor's execution.
Per Curiam.-The execution having been granted by the Governor, I have no jurisdiction in the matter.
16th May, 1842. HEYWOOD, D.
Suit to have deft. fined, according to law, for not having sent a man to the high-roads for the house occupied by him, due notice having been given to him.
The deft. stated, that he had left the premises, paid his rent, and settled with his landlord, who, as proprietor of the house, was bound to pay the high-road labour. If deft. were now to be made to perform the labour he could not recover it from his landlord.
Per Curiam.-The Overseer need only look to the person occupying the tenement. The deft. received due notice and has not attended to it. It is the occupier who must perform the high-road. labour, whatever may be his bargain with the landlord. , the fact of the tenant having paid his rent does not alter the case.
Judgment for the pltfff, fining the deft.
COMMON LAW, 17th May, 1842.
. QUIRK: and DUMBELL for Pltff.; CORLETT for Deft.
In the course of this cause the deft. offered to prove, by a witness then under examination, that he had received authority to do certain things upon the part of the pltff.
The pltff's. advocates suggested the propriety of asking the witness if his authority was in writing ; because, otherwise, after the evidence was all taken down, if it should appear the authority was in writing, it must be all struck out again.
The deft's. advocate stated that he should prove the facts, and proceeded with his examination.
When he had closed, the pltff., upon cross-examination, proved that the deponent had a written authority from the pltff for what he had done, and no other authority whatsoever.
DUMBELL, for pltff, then moved to have all that part of the witness's evidence, which referred to the nature of his authority, struck out, as giving the contents of a written document; no notice having been given to the pltff to produce the original.
CORLETT, for deft., objected to the evidence being struck out; having once been committed to writing, the record could not be defaced; besides which, the witness had sworn to facts within his own knowledge.
The Court ruled with the pltffl:, and struck out the evidence complained of.
In a subsequent part of the case, the deft's. advocate sought to produce a copy of the Deemster's minutes of a cause before him, between the same parties; and called a witness to prove the paper was a true copy from the Deemster's book.
DUMBELL, for pltffl:, objected to the production of the paper, or any proof being given of it. The Deemster's book itself would not be evidence without proof of the correctness of what was written in it. The witnesses had not signed their depositions, and the Deemster was not bound to write more than he chose for his own satisfaction. Much more might have passed, and if part was to be given in evidence, the whole ought to be before the jury. Suppose the case of a corrupt judge, how frightful might be the evil if his minutes were to be received without proof.
CORLETT, in reply.-The copy ought to be received. The Deemster's minutes are always received upon the hearing of appeals from their judgments, and this copy is certified by the Deemster himself to be correct; besides which, I am prepared to prove by the witness who made the copy, that it is a true copy from the Deemster's Court Minute Book.
The Court refused to receive the paper in evidence.
2nd June, 1842. READY, G.
DUMBELL for Plttf. ; QUAYLE for Deft.
This was an application, by petition, to the Governor, as president of the Court of Common Law, to have a new trial of a cause decided the previous term. The following grounds for the appli cation were embodied in the petition. Previous to the last Court of Common Law, when the cause was to have come on, the deft. went to his advocate's office and saw his clerk, who informed deft. that the advocate was ill, and unable to attend the court, and assured the petitioner that the cause could not come on. Fully depending upon this, the petitioner did not attend the court, or retain another advocate. Upon the court day, the cause being undefended, witnesses were examined, and the case was put to the jury, who gave a verdict of £15 ; but petitioner, if he, or his advocate, had been in court, was prepared to make a good defence; in support of which assertion
DUMBELL produced several affidavits referring to the merits of the case, and proving some offers and agreements for a compromise. Petitioner therefore contended, that these grounds were sufficient to entitle him to a new trial ; besides which, when the jury brought in their verdict they gave it without costs, and thereupon the Deemster desired them to reconsider their verdict, which chews the effect of a hearing ex parte; and he submitted that this alone was ground for a new trial.
QUAYLE, for deft. (the pltff. in the principal cause), objected to the application, and quoted the case of Kermode v. Holmes, Lib. Scac., 1819. In that case the deft. was ill, and his advocate, meeting with an accident on the way to the court, was prevented being there in time. The cause was heard undefended, and a verdict given far pltff. Subsequently, the then deft. presented his petition for a new trial, stating the ground of his application; and, upon a hearing, the Court refused a new trial. The deft. should have employed another advocate. As to the alleged misdirection of the judge, the facts were not as stated, and could not be so proved.
New trial refused.
CHANCERY COURT, 3rd June, 1842. READY, G.
QUAYLE for Pltff. ; BLUETT fox Deft.
Under a bill in Chancery, complnt. had an order to make personal service on the deft. in England, to be verified by affidavit. Today the complnt. moved for an attachment, and produced an affidavit made by Ann Brine, stating, that the deponent had served "due notice" upon the deft. in Liverpool, upon a day stated ; but the notice itself was not produced, nor was the purport of it set forth in the affidavit.
It was objected, for deft., that the affidavit was insufficient ; the notice itself ought to have been set forth in the affidavit, or the affidavit should have been attached to the notice. The deponent was no judge whether the notice was "due notice" or otherwise.
It was the province of the Court to decide that point. Certificates of service by Coroners were, upon production and investigation, frequently found to be erroneous ; and that might or might not be the case in the present instance, but the notice not being produced, the Court had no means of judging of the fact.
COURT MINUTE.-The affidavit ought to have set forth the notice, or have been attached to it.
20th June, 1842. HEYWOOD, D.
GELLING and DUMBELL for Pltff.; BLUETT for Deft.
The suit was brought against the deft. to have him fined for not having performed the high-road labour, alleged to be payable by him in respect of a house which he occupied, due notice having been given to him by the Overseer..
For the defence, it was proved, that deft. was a farm-labourer in the employ of James Holmes, Esq. ; and, in that capacity, occupied one of seventeen cottages that were upon the farm for the accommodation of the labourers employed upon it. That the deft. paid no rent for the cottage, but was allowed to occupy it as a part of his wages. That the whole labour chargeable upon the land on which the cottage was built, had been performed by Holmes ; and, it was urged, that the servants employed in cultivating the farm, in respect of which the labour was to be performed by the proprietor, were not liable to perform additional labour in respect of cottages on the same premises occupied by them merely as part of their wages, and for which they paid no rent.
DUMBELL, for pltff.-The high-road labour is payable not in respect of the rent, but of the "occupation." It has already been decided that all occupiers of houses in the towns, are liable to perform the high-road labour. In Fayle's case, and English's, the houses had been divided, and were separately occupied, and each "occupier" was held liable. The law now makes no distinction between labourers and other occupiers. By the Statute of 1712 labourers were specially exempted; but the present law makes no distinct mention of labourers, but states, that all " occupiers of houses" shall send one man, &c. The deft. is an occupier, and therefore liable.
BLUETT.-The existing statute says, the "proprietor or occupier" in the alternative. In this case, the proprietor has paid, and the occupier is therefore not liable.
HELD.-That the deft. occupying as a mere labourer, and not paying rent, was not liable to perform labour.
20th June, 1842. HEYWOOD, D.
GELLING and DUMBELL for Pltff.; BLUETT for Deft.
This suit was instituted against the deft. for having refused to perform the high-road labour alleged to be due by him in respect of a house he occupied on part of the estate of Port le Murray, and the usual fine was prayed for.
The defence was, that the premises deft. occupied were part of a house, the property of one John Taubman, who had performed all the labour chargeable upon one house. The house had been divided into two, but was under the one roof, and belonged to one proprietor, although let to separate tenants.
HELD.-That the tenement being divided, and separately occupied, must be looked upon as two houses, each of which was chargeable with high-road labour, and, therefore, deft. must be fined. Deft. was fined accordingly with costs.
From this judgment the deft. appealed to the Staff of Government; and, for cause of appeal, alleged, that the judgment ought to be reversed, " because the high-road labour, chargeable upon any portion of a quarterland, is, by the Statute of 1776, made payable by the proprietor or occupier, in proportion to the amount of chief rent payable to the lord. That the proportion of lord's rent chargeable upon the premises, of which the dwelling occupied by the applnt. was only a part, is under one-fourth part of the whole quarterland rent, and which subjects the proprietor or occupier of the said premises, according to the terms of the Statute of 1776, to send one man only to the high-roads. That the performance of the said proportion of high-road labour by either the proprietor or the occupier is a discharge to both. That the said John Taubman, the proprietor of the said premises, had performed the full amount of labour fixed thereupon by the statute ; and, therefore, the applnt., as occupier of part of the said premises, is not liable to perform any labour."
On the 2nd March, 1843, the cause came on to be heard upon the merits; and, upon the part of the applnt., it was argued, in addition to the reasons assigned for the appeal, that if a proprietor of a quarterland sold his land in lots, each purchaser would be liable to pay and perform the proportion of high-road labour fixed by the statute :-that every owner or occupier of the whole, or part, of a quarterland, had a right to build as many houses as he pleased, and he would not be chargeable with additional labour, because the statute fixed the amount of labour in the alternative, to be paid either by the proprietor or occupier. It might have been very different if the statute had said, that the owners and occupiers of dwelling houses should both be subject to so much labour. The statute, however, did not make any such provision, and if the statute was deficient it ought to be amended by legislative enactment, and not by judicial decision:
For respndt., it was replied, that every house was liable to send one man to the high-roads, whether it was occupied by a tenant paying rent, or by the proprietor himself. The courts had always so decided, and the cases in Douglas of Fayle's and English's houses were cases in point.
The Court considered the premises as two separate houses,affirmed the Deemster's judgment, and dismissed the appeal, lint without costs.
CHANCERY COURT, 7th July, 1842.
BLUETT for Pltff ; DIIMBELL for Defts.
At the third court, in June, defts. appeared, by Dumbell, and moved for time to plead, answer, or demur : the defts. not having since done anything, complnt. this day moved for a rule pro confesso.
Objected, by defts., that they had not yet been enjoined to answer.
To which it was replied, that the appearance having been entered, and motion made by the defts. for time to plead, answer, or demur, defts. were bound to answer. Complnt. could not obtain a rule on the same day as the defts., and therefore if the defts motion was granted the delay of the proceedings, already so grievous would be increased another month.
Per CLERK of the ROLLS.-The point is quite new; at least, I never remember it to have been agitated. I have it in intention to suggest some alteration in the time allowed a deft. to appear and answer. It is manifestly too long now; but, in the present case, I. think the defts. have not committed any contempt of the Court. They have not been enjoined to answer; and, consequently, have not committed any breach of such injunction so as to entitle the pltff. to a rule pro confesso.
11th July, 1842. HEYWOOD, D.
DUMBELL for PIM; BLUETT for Defts.
This suit was brought to recover the amount of a note. BLUETT, for defts., denied that the pltff. had made any demand upon them before bringing this suit.
DUMBELL.-DO you admit the note?
BLUETT.-I do not admit anything. I deny that a demand has been made for any particular thing; and the warrant does not skew What the suit is for.
DUMBELL then moved for a continuance to prove the note. BLUETT objected to such a continuance.
DUMBELL.-The settled practice of the court for years has been, that if a deft. come in and deny the subject matter of the suit, the subsequent denial waives the necessity of proving the demand, and the continuance will be general to prove the case. In this case defts. say, they do not admit-in other words they deny the note.
BLUETT, for defts., admitted the practice to be as stated ; but this case was quite different to the former one of Corkill v. Christian. There deft. distinctly denied the note, as well as the demand; but, in this case, defts. rest upon the want of a demand. They do not admit anything or deny anything; and, therefore, the pltff. must prove a demand before he can go on with his suit.
Per Curiam.-No doubt the practice is as stated by Mr. Dumbell. A demand is required to enable deft. to prepare his defence; but if he denies the subject matter of the suit, he skews that he knows what the cause of suit is, and a demand is unnecessary. But here there is a wide difference. The defts. stand out on the demand ; they do not admit anything, or that you have any cause of suit that they know of. You must, therefore, prove your demand first, and the cause must stand continued. Continued to prove a demand.
11th July, 1842. HEYWOODI D.
DUMBELL for Pltffs.; HAINING for Deft.
Brought for £9 is., the amount of deft's. note.
For deft., it was contended, there had never been any demand for any sum whatever, and that it was not deft's. note.
Pltffs. moved for a continuance to prove the note, To which deft. objected until a demand was proved.
DUMBELL: The deft. having denied the debt it is not necessary to prove the demand. He might have insisted upon the demand being proved as a preliminary step; but denying the note is a defence upon the merits, and a waiver of the first objection.
The Court ruled with the pltff, and continued the cause to prove the note.
HOUSE OF KEYS, 10th Aug., 1842.
BLUETT and QUIRK for Applint.; CORLETT for Respndt.
The deft. having obtained a verdict in the court below, the pltff. appealed, and the cause coming on, respndt. moved to read certain minutes, taken by the Deemster in a former cause between the same parties, touching the same matters in dispute.
Objected, that they had not been allowed as evidence in the court below, and, therefore, could not be read here. If any party is dissatisfied with the reception or rejection of any evidence taken in the court below, the objection to it being taken at the time, application must be made to the Governor, as president of the Court of Common Law, to set the matter right, before the cause comes to this House but if the party objecting neglect to adopt that course he must be held to have abandoned the question, and this court cannot interfere, but must receive the evidence. It had been so ruled in many cases, the last of which was the case of Thomson v. May.
CORLETT, for respndt., submitted, that this court had jurisdiction and power to decide upon anything which could have been decided in the court below ; and, therefore, had a right to say whether the paper should be read or not, and that principle was recognized in the case of Ashton v. Taubman and Topliss.
By the SPEAKER.-If the paper is not marked as exhibited in the court below it cannot be read here.
CHANCERY COURT, 3rd Nov., 1842.
STEPHEN for Pltffs. ; CLUCAS for Defts.
This was an application, by petition, upon the part of certain creditors of Thos. Teare, deceased, praying the Court to order the overplus arising out of the sale of certain lands of the deceadant, which had been brought to auction by the mortgagee, and which lands were liable to be sold for debt, to be paid into court for distribution amongst the creditors. The personal estate had been wound up in the Ecclesiastical Court, and found to be insufficient to pay twenty shillings in the pound.
Per CLERK Of the ROLLS.-Is the administrator a party to the application ?
STEPHEN. We would have made the administrator a party if he had offered any objection to the application; but he has not any, and applications of this kind have been frequently granted at the suit of creditors.
Per CLERK of the ROLLS.-Not without the administrator being made a party. If he objects, he must be made a party deft.; if he consents, he may be joined a party petitioner with the creditors ; but a party one way or other he must be, as he is nominally to receive the money, and distribute it amongst the creditors, even though done by the Court.
STEPHEN.-There were two administrators, who are both dead.
Per CLERK of the ROLLS.-Another administrator must be set up. The petition may be continued for that purpose.
COMMON LAW, 8th Nov., 1842. HEYWOOD, D.
QUAYLE for Pltff. ; DUMBELL for Deft.
Pltff sought to file his declaration, this being the first court. DUMBELL, for deft., objected, that no summons had been made according to law, the warrant not having been taken out until the 24th ; whereas, by the statute, the court was to have been held on the 11th of October.
QUAYLE, for pltff-Long before the 11th October notice was given by the Governor's proclamation that, on account of the lateness of the harvest and of the fishing, the Common Law Court would not be held until the present day, the 8th November. The whole term was, therefore, postponed. It would have been useless after that proclamation to have made summons for a day on which no court was to be held; but summons was made in due time for the court fixed by the proclamation, and he. submitted that that summons was good.
Per Curiam.-The Governor's proclamation cannot alter the statute. The summons should have been made for the day fixed by law ; the proclamation is merely an adjournment of the term. There being no summons for the proper court day, the declaration cannot be filed.