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[from Advocate's Notebook, 1847]
24th Nov., 1843.
CHRISTIAN, D.
WILSON for Pltff.; CRAGIE for Deft.
The suit was brought to recover £25, land rent, due 12th Nov. last.
The deft. moved for a continuance, upon the ground that he had a set off to prove.
Objected that no account of any set off had ever been furnished, or notice of the nature thereof ; in fact, there could not be a set off, and the pltff called upon the deft. to produce the account of it, or even to state what it was.
The deft. being unable to do either, the pltff. moved to be permitted to prove his case, which the Court allowed, refusing a continuance to the deft.
Execution without prejudice for £25 and costs.
24th Nov., 1843.
CHRISTIAN, D.
DUMBELL for Pltff.; BLUETT for Deft.
The pltff. held several executions against Thomas Freer, who was entitled to both real and personal property. Freer gave pawn upon these executions, and afterwards left the Island, but previous thereto handed over the title deeds of his real estate to the deft., as his advocate, to sell the property for him. The deft. did not effect a sale, but the pltff. afterwards sold the premises under the judgment in his hands. The present suit was brought by the Coroner to obtain an order for the deft. to deliver up to him the title deeds of Freer's estate.
The suit was resisted, upon the ground, that the deft. had an account due to him for the professional business he had performed for the deft. in endeavouring to effect a sale of the premises ; and, therefore, he claimed a lien upon the papers to the amount of his account.
Upon the part of the pltff., it was contended, that no lien could be sustained. Before Freer delivered the deeds to the deft. he had given pawn under the various executions in the officer's hands against him ; and had, therefore, virtually delivered over all his saleable property to the Coroner, in whom it thenceforth vested, and Freer had no further control over it. It could not be contended that Freer could mortgage his estate after giving pawn, nor could he create any other lien upon it.
For deft., it was replied, that the effect of delivering pawn could not be construed to have so unlimited an extent. Suppose a tradesman disputing a debt, execution might be granted, and the deft. might intend to appeal. He would, nevertheless, be bound to deliver pawn to save imprisonment for contempt ; and it would be too much to say, that, from that time forth, all his stock-in-trade vested in the Coroner, and that he could not sell a single article out of his shop.
For pltff. — No such evil could arise. In such a case the Coroner would be bound to appraise only so much as would be necessary to satisfy the execution.
Per Curiam. — It appears to me the deft. has no lien upon these papers, and must deliver them up.
Order without costs.
27th Nov., 1843.
CHRISTIAN, D.
DUMBELL for Pltff. ; BLUETT and JEFFCOTT for Deft.
This was an application, by petition, to have the deft. ordered to remove a quantity of gravel which had accumulated in the river which ran though his premises.
It appeared in evidence that the pltff and deft. held lands adjoining each other. That a small river ran through the lands of the deft. and passed close to the boundary fence which divided the pltff's. lands from the deft's. : — that between the fence and the river there was a space about two or three yards broad, on the deft's. lands. That there was a gravel bank in the bed of the river on the deft's. lands, which had been suffered to accumulate gradually. That this bank drove the river from its ancient channel towards the said boundary fence : — that by imperceptible degrees, the space of land between the said fence and the river's bank had been washed away, and finally the whole of the boundary fence, in that part, had been carried away, and much damage had been done to the pltff's. lands.
Upon the part of the pltff. it was argued, that as the deft. owned the lands on both sides of the river, he was bound to keep the course clear, and not to suffer any accumulation in the bed of the river to divert it from the ancient channel. The accumulation of gravel was a nuisance to the pltff., but, being on the deft's. lands, the pltff. had no power to enter thereon to abate the nuisance, and, therefore, upon the principle that there was no wrong without a remedy, the pltff. applied to the Court to interpose its summary jurisdiction by ordering the deft. to remove the nuisance, so as to prevent future injury, without prejudice to the pltff's. seeking redress, as he might be advised, for the past.
For the deft. it was contended, that he was not in any way answerable for the damage done. The river was an ancient one running in its ancient bed, and not in any artificial channel. That the river was subject to variations from the heavy floods which came down. The gradual accumulation of gravel in one place, or the washing away of the lands in any other, by the effect of these floods, were equally acts of Providence, over which the deft. could have no control. The changes that were alleged to have taken place had been gradual and imperceptible — the work of time by the act of God. If the deft. had removed any artificial bulwark, or bank, or even large stones, which it could be proved had theretofore regulated the course of the river, and by their removal the course had been changed, and the pltff. damaged, this would have been an act of the deft's. own, for which he might be answerable in an action for damages.
The Court refused to exercise its summary jurisdiction, and referred the pltff. to law for redress in the premises.
27th Nov., 1848.
CHRISTIAN, D.
DUMBELL for Pltff.; JEFFCOTT for Deft. This suit was brought to recover £2 rent.
JEFFCOTT moved for a continuance upon the part of deft.
DUMBELL. — The deft. is not entitled to a continuance without shewing cause. This point was decided the very last court.
JEFFCOTT contended he was not bound to let out his clients case, but was entitled to a continuance as a matter of course.
Per Curiam. — You must shew cause, or I cannot grant a continuance.
JEFFCOTT. — Then I move for a continuance in order to prove that the deft. was a minor when the transaction took place, and that moneys paid have not been credited.
DUMBELL. — I admit the fact of the minority, and as to the money paid, we give credit for a large sum; if the deft. claims more he must shew an account.
The deft. not having any account, nor stating the amount of his demand, the Court refused a continuance, and allowed the pltff. to proceed with his case.
DUMBELL then produced the lease between the parties, which was attested before a High Bailiff.
JEFFCOTT objected to this, and required the pltff. to prove his lease by the subscribing witnesses.
DUMBELL. — They are out of the jurisdiction of the Court, but I will prove their hand writing.
JEFFCOTT Objected to this course of proof.
Per Curiam. — If it be shewn that the witnesses are out of the Island it will be sufficient in this court to prove their handwriting.
Evidence was then given to shew that the two witnesses were off the Island, and their handwriting was proved. The account was then proved, and that deft. since he came of age had ratified the lease.
Execution granted.
GELLING and DUMBELL for Pltff. ; JEFFCOTT for Deft.
This was a petition to the Deemster stating, that the pltff's. estate of Ballakilley made boundary with the deft's. estate of the Rowany. That the fence was out of repair, insufficient, and so crooked that it required sixty-seven yards more fencing than a straight line, and was more expensive to keep in repair. That the petitioner required to have a stone fence or boundary between the parties in terms of the statute. And the petitioner prayed that his Honour would be pleased to order the Commissioners of Highways, as the Commissioners of boundaries, to view and survey the said premises, and to settle the differences between the petitioner and the said James Clague by ascertaining a new boundary; and, upon viewing the premises, to make their report in this behalf, and to shorten and fix the said boundary between the petitioner and the deft. in terms of the statute, and preparatory to the petitioner's compelling the said James Clague to join him in building a stone wall thereon. And that petitioner might be allowed his costs and such part of the expense attending the matter as the law would allow. It was objected, that the application was informal ; that a jury ought to have been convened, in the first instance, to view the boundary, and make their report upon it before the Deemster could interpose his authority to order the commissioners to fix and straighten the boundary.
Upon the part of the petitioner, it was replied, that the application was to have a crooked boundary made straight. It was only necessary, in such case, to prove that the fence was crooked and out of repair ; and then, by the terms of the Statute of 1776, the Court had jurisdiction to grant the prayer of the petition.
Evidence was accordingly given that the fence was crooked, insufficient, and out of repair.
The Court, therefore, ordered the Commissioners of "Drains" to appear upon the premises, and settle the differences between the parties, and ascertain the correct mere or boundary between them.
CORLETT for Pltff.; DUMBELL and LAMOTHE for Deft.
Upon application for injunction upon the bill and answer, pltff. produced a ledger belonging to Isabella Kissack, who, it was stated in the bill, and admitted by the answer, died in 1824.
Objected. — That Isabella Kissack, if living, would be interested in the transaction, and no declaration of hers, oral or written, could be received, nor could the ledger be evidence, with or without proof, in this, or any other stage of the pleadings.
For pltff. — It is not exhibited as being now legal evidence, but it is quite capable of being made so. Suppose it could be proved that the entry in the ledger was made in the presence, and by the consent, of the party opposed to her in interest, and under whom the deft. claims? This would clearly make it evidence. Many things may be used upon the arguing of an injunction that the Court would not allow upon the merits. But upon the injunction it is sufficient merely to raise a presumption of a fact which may afterwards be proved or not.
Deemster CHRISTIAN and the CLERK of the ROLLS. — Many things may be produced and read upon injunction, which may never be proved, or be admitted in evidence afterwards.
The Court allowed the ledger to be produced. Deemster HEYWOOD dissent.
CORLETT, for pltff., then proceeded to read certain affidavits, which he stated would be a complete contradiction to the answer.
DUMBELL, for deft. — Upon that ground, then, I object to their production. A deft. is compelled to answer, but no affidavit can be exhibited to contradict him, because he has no benefit of cross-examining the deponent.
G. QUIRK, Water-Bailiff: — To admit such affidavits would be trying the case upon the merits, with nothing but ex parte evidence. Affidavits refused. The deft. then produced certain affidavits in support of the answer, and in contradiction to the book of Miss Kissack.
These were objected to by the pltff., but allowed by the Court.
ADJOURNED COURT, 22d Dec., 1843.
HEYWOOD, D.
FLEETWOOD for Pltff ; DUMBELL for Deft.
Pltff moved to have a Trespass Jury's verdict received. Objected by deft., that evidence was given and received before the jury, which was not committed to writing.
FLEETWOOD, for pltff. — Certain evidence was given for deft., but being altogether irrelevant in my opinion, I refused to take it down.
DUMBELL. — I am informed it was most relevant; but at any rate, if given at all, it ought to have been written down. The Court is the proper tribunal to decide upon what is, or what is not, evidence.
Per Curiam. — The advocate of either party is not the proper person to decide what is evidence. The jury must go back to amend their proceedings; all evidence given before them must go to the Record. I cannot receive their verdict without the evidence.
FLEETWOOD. — Is the pltff's. advocate bound to write down the deft's. evidence ?
Per Curiam. — Certainly not; but that is a matter with which I have nothing to do. I have simply to see that the evidence given before the jury is brought before me to go to Record.
[see p281]
9th January, 1844.
HEYWOOD, D.
DUMBELL for Pltff.; QUAYLE for Deft.
Objected that the pltff's. claim being for £800, arrears of rent for several years, the pltff was bound to furnish the deft. with an account.
For pltff , it was stated that the rent arose under a lease which being a specialty there was no occasion for an account.
Replied, that the pltff's. doctrine only applied to one year's rent, but where there were several years, it was as much a matter of account as anything else, and pltff ought not to be allowed to proceed, for want of having furnished an account.
The Court overruled the objection, and allowed the cause to proceed.
HARRISON for Pltffs.; QUAYLE for Defts.
In this case an action had been taken out by the pltffs. to hold the defts. to bail, both to be forthcoming for the maintenance of an illegitimate child, lest the parish should be made chargeable therewith. Process of arrest was granted, and the parties were ar rested and imprisoned. They then presented a petition to the Governor for a maintenance, and upon the hearing of it at a special court, an appearance was made for the pltffs., and they withdrew the arrest.
Upon calling over the list this day, pltffs. moved to dismiss the cause non pros, without costs.
QUAYLE, for defts., moved for costs.
Objected. — That the defts'. advocate, according to the rule of the court, must produce a power of attorney before he could move for costs upon a first court.
For defts. it was replied, that the rule applied not to the first ordinary court, but to the first appearance in court by the defts. This was not the first appearance, and therefore defts. submitted they were entitled to costs upon the dismissal of the cause.
Dismissed non pros without costs.
FLEETWOOD for Pltff.; DUMBELL for Deft.
A Trespass Jury's warrant was taken out by the pltff. in the following words: — " to find out and discover what person or persons hath or have, by himself, herself, or themselves, or by his, her, or their horses, sheep, or other cattle, injured and damaged a certain stack of oats, the property of the pltff, in a field part of Ballacreetch, in Onchan, and to estimate the damage." Evidence was gone into and the jury made a verdict, which pltff now moved to have received.
DUMBELL, for deft., objected, that the whole proceeding must fall to the ground for informality in the warrant ; it not being stated therein, that the pltff was in possession of the field where the stack was. In fact, the pltff could not, with truth, make any such statement, because her tenancy had expired; and she was in law a trespasser by keeping her stack on the premises.
The Court held the objection good and refused to receive the verdict.
INSOLVENT DEBTOR'S COURT, 8th Feb., 1844.
HOWARD for Pltff.; BLUETT for Deft.
This was a petition praying to be released from gaol, under the Insolvent Act.
BLUETT, for several of the creditors, objected, that the applicant was not in a situation to apply to the Court, having been released by the only detaining creditor the evening previous. The rule of the court required that the prisoner should have been actually in confinement in the gaol of Castle Rushen three calendar months immediately preceding the hearing of his petition. In this case the applicant was not now in fact a prisoner at the bar of the court, nor had he been in goal, as a prisoner, since seven o'clock on the evening previous, when the detaining creditor withdrew his action.
For petitioner it was contended that the course pursued by the detaining creditor, if it could be successful, would be most oppressive and unjust. If this Court should support it, another creditor might sue out an action forthwith, again imprison the debtor, and adopt the same course at the end of the next six months, by withdrawing his action.
Per CLERK of the ROLLS. — A remedy must be adopted if the course suggested should be attempted, but as to the present application, it is clear the petitioner is not now a prisoner, and therefore the Court has nothing whereon to form a judgment.
COURT of GENERAL GOAL DELIVERY, 23rd Feb., 1844.
READY, G.
CHRISTIAN, D.
M'HUTCHIN, C.R.
QUIRK, W.B.
Attorney-General OGDEN:
The prisoner was arraigned upon an indictment charging him with the commission of wilful murder.
The prisoner being called upon to plead " guilty or not guilty," stood mute ;
Whereupon the ATTORNEY-GENERAL moved to have a jury empannelled and sworn to try the issue, whether the prisoner at the bar stood mute from malice or the act of God ?
A jury was accordingly sworn, and Thomas Nelson, M.D., was sworn and examined by the ATTORNEY-GENERAL, and proved, that he had known the prisoner, and had visited him professionally on the day he stood charged with having committed the crime imputed to him. That he was then of unsound mind. That the deponent had visited him professionally since that time, and on this day also, and that the deponent was clearly of opinion that the prisoner was of unsound mind, wholly unconscious of his acts, and of the position in which he then stood.
The DEEMSTER charged the jury, that, if they were satisfied with the evidence given, it was manifest the prisoner was not acting from malice, but from a visitation of the providence of God.
The jury immediately delivered their verdict, " that the prisoner stood mute by the act of God."
The ATTORNEY-GENERAL then moved, "that the prisoner should be remanded until her Majesty's pleasure should be known."
He was accordingly taken back to gaol.
[Aged 53, hurled stone at wife hitting her on head from which wound she died; detained at Her Majesty's pleasure as of unsound mind]
4th March, 1844.
CHRISTIAN, D.
FLEETWOOD for Pltff.; HARRISON for Deft.
The pltff. sought to obtain an order of imprisonment for the amount of a promissory note for £17, purporting to be for the price of two horses bought at an auction of goods sold under an execution against John Hoult, as expressed upon the face of the note.
Objected, that the Coroner had no right to an order of imprisonment, because, by taking the promissory note, he had changed the nature of the claim ; and, therefore, could only be entitled to an execution.
Replied, that the note was merely a memorandum, in writing, of the debt, and fixing a time for the payment of it.
Deemster CHRISTIAN. — I do not consider the nature of the claim at all altered by the note being passed for it; the order must be granted.
4th March, 1844.
CHRISTIAN, D.
HARRIS for Pltffs. ; QUAYLE for Deft.
To recover balance of a bill of exchange. The deft. called for a power of attorney.
HARRIS, for pltff., stated that he had received written instructions to obtain the money some time back, and that the deft. had from time to time paid him various sums on account, by which deft. had admitted his authority to sue.
QUAYLE, for deft. — That does not follow. There may be an authority to demand money, and yet no authority to bring a suit.
HARRIS then produced a letter, purporting to be from the pltffs.
QUAYLE. — I do not admit the letter to be the pltffs'.
Per Curiam. — I think where the deft. has already paid money on account to Mr. Harris, I must hold it as an admission of his authority. Let the cause proceed.
[William Nowlin, draper Duke Street Douglas]
KELLY and DUMBELL for Pltff. ; QUAYLE for Deft.
This was an application, by petition, to have certain property delivered up to the petitioner, which had been attached under an arrest for rent taken out by the deft. against the petitioner and John Longford Miller.
For petitioner, it was alleged, that she was only a lodger, and held a room under Mrs. Miller by the week, and might leave at any time; whereas, the arrest was against her with Mrs. Miller as joint-tenants, for rent up to July. The petitioner denied any contract with Cain, and, therefore, urged that the arrest itself was illegal, and must be quashed.
QUAYLE, for deft. — The goods arrested were found upon the premises, and are, therefore, liable for the rent even if the petitioner was not a tenant; which, however, he could easily prove she was, and moved for a continuance for that purpose.
DUMBELL objected to a continuance, the matter being by petition, and, therefore, the deft. was bound to come prepared.
The Court ruled with the petitioner, and ordered the cause to proceed, as the deft. ought to have come prepared to prove the truth of his arrest, otherwise it must fall to the ground. Evidence was then given to skew that the petitioner was not a tenant under the deft., and that the goods required to be delivered up were her property.
Per Curiam. — The arrest is informal, and must be quashed so far as the petitioner is concerned ; and the goods arrested ordered to be delivered up to her, and the deft. must pay the costs.
STEWART for Pltff.
The pltff. Karran obtained an execution against Philip Moore, and thereunder arrested in the hands of the deft. McCaughern all money due by him to Moore. Subsequently the pltff. Kneale, holding the execution to enforce as Lockman of the parish, examined the deft. upon oath before a jury, out of court, in the usual form of law, and McCaughern then admitted that he owed Moore £1 12s., but when called upon to pay it, he refused to do so, and the pltff. was therefore obliged to bring him into court to obtain execution against him, and it was contended that the judgment ought to be granted with costs.
For deft. it was argued, that as the debt was due to a third party, he would not be justified in paying it without the judgment of the Court, and therefore ought not to be made to pay costs.
The Court, however, granted execution with costs.
DUMBELL for Pltffs.; CRAIGIE for Deft.
To recover an account.
The deft. pleaded the Statute of Limitations.
Objected, by pltffs., that the deft. appeared last court, and put the pltffs. upon proof of an account delivered, and a demand made. Having thus joined issue, it was too late to plead the statute.
CRAIGIE, for deft. — Demanding an account is not a bar to any defence, but a preliminary step to enable the party to make one. Upon receiving the account, it appears, the statute bars the recovery of the debt, and affords a legal defence to the suit.
Per Curiam. — Demanding an account is not such a joining issue as would bar the present or any other defence. The account is necessary in the first instance.
GELLING for PUT; DUMBELL for Deft.
This suit was brought to obtain an execution against the deft., as heir-at-law of William C. Crow, deceased, for the amount of a bond and security for £800 passed by the said William C. Crow to pltff. on the 27th July, 1831, and chargeable on certain lands and premises, which were now possessed by the deft. as the heir-at-law of the deceased.
Objected, that the deft. was not liable personally to pay the amount of the bond and security ; and, therefore, the present representative of the deceased must be made a party to the suit.
The Court held the objection good, and continued the cause to make the personal representative of the deceased a party to the suit.
BLUETT and WILSON for Pltff.; CRAIGIE for Deft.
This was a petition praying to have a special action quashed under the following circumstances. One Susan Templeton, on the 11th day of April last, sued out her action to hold the petitioner to bail for the maintenance of an illegitimate child, unborn. To this action one James Gelling became bail, and the petitioner, who had been imprisoned, was then discharged from gaol; but, afterwards, the pltff. Templeton caused the same action to be rigidly enforced against the petitioner's property and effects. Mrs. Stead, the deft., and two other persons then bailed the goods. A short time after this Mrs. Stead, took out a special action to hold the petitioner to bail for any loss she might sustain in having gone bail, and it was now urged for the petitioner that this action was illegal, and that the deft. having put confidence in the petitioner, and voluntarily assumed the situation of bail, ought not to be allowed to withdraw that confidence, and could have no cause of action against the petitioner until she was actually damnified. That if the Court held the present action good, the other two bails might follow the example, and three special actions might be pending against the petitioner for the same thing.
Evidence was given to skew that the petitioner's situation was not changed since the deft. had become bail for him.
The Court, however, dismissed the petition, without costs.
BLUETT for Pltffs. ; DUMBELL for Defts. This was a question of preference under executions.
In 1841, Robert Duff obtained execution against one Mylrea, and put it into the hands of the Lockman of Lonan, who subsequently made a return. In 1842 it was again enforced in Kirk Lonan, and certain property appraised and sold, and a jury's return given for the balance. In 1843, the pltffs. obtained an execution against Mylrea for land rent, in preference, which they also put into the hands of the Lockman of Lonan for that year, and from him received eight shillings on account, and a jury's return for the balance. In May, 1844, Duff put his execution into the hands of the Lockman of Onchan, and the day afterwards the pltffs. put their execution also into the hands of the same Lockman, who, under both executions, appraised and sold certain property in that parish belonging to the deft. in the executions, and pltffs now moved for an order against the Lockman for the amount of his execution in preference, on account of its being for land rent,
Objected, by the deft. Duff, that he was entitled to a preference, and not the pltffs. ; forasmuch as that no pawn had been delivered upon the pltffs'. execution, whereas, the execution of the deft. Duff had been twice enforced, and a jury's return made each time, before the pltffs'. execution was granted.
For the pltff's. it was replied that both parties were in the same situation as to pawn, for that pawn had not been delivered upon either execution, and the jury's returns could not supply that defect. The two executions were put into the hands of the deft. Kneale within a day of each other, and therefore as they had no advantage over each other in point of time, the pltff's. execution being for rent, must have a preference.
Per Curiam. — Pawn not having been delivered on either executions, it was irregular for the Coroner or Lockman to take any proceedings ; the jury's returns are of no avail, but both executions are in the same situation as to that matter. And the executions being now in the hands of an officer where the deft. in execution does not reside, it remains to decide who is entitled to the proceeds of the property sold. The pltffs'. execution being for rent, must of course, have a preference. Let the pltffs. therefore take an order against the Lockman for the balance in his hands, without costs.
GELLING for Pltff. ; KELLY for Deft.
Richard Corrin was deft. under an action sued out against him by the petitioner, which sought security for maintenance of an illegitimate child. The complnt. stated in the action "that she was pregnant of an illegitimate child, whereof the deft. is the father ; and whereas the complnt. apprehends that the deft. intends speedily to depart this Isle, and carry off his effects, without giving security to the complnt. for his moiety of the expenses that may attend the birth, clothing, maintenance, and education of the said child, and complnt. further charges that should the deft. so depart this Isle without giving security to be answerable and amenable for his moiety aforesaid, together with the costs of this application, complnt. may be damaged to the extent of £20, and upwards, to all which ends complnt. prays process, according to the rules of the honourable Court of Chancery."
Corrin, the deft., now presented his petition to have the action quashed for imformality, and it was alleged that the action did not pray " process with arrest," and therefore no such process had been granted, and no arrest ought to have been laid under it.
KELLY, for the deft. to this petition, argued, that the prayer for "process according to the rules of the honourable Court of Chancery," was sufficient, and that when process was granted, it implied process with arrest, as a matter of course.
Held, that the action was informal, and must be quashed.
GELLING for Pltff. ; QUAYLE for Deft.
To have deft. fined for not having performed high-road labour in respect of a house occupied by him.
For the defence, it was alleged, that the premises occupied by the deft. were held by him under sufferance from his father, who permitted him to occupy the house, a garden, and half an acre of land, rent free ; so that he was, in fact, no tenant. He worked for his father, on his farm, occasionally.
For pltff. it was proved, that the deft. occupied the premises, but went to the fishing in the season, and worked in the flax mill, for his own benefit; and was, in these respects, acting as an independent man.
Per Curiam. — The deft. is evidently occupying the premises independently, and not as his father's servant. This case does not come within the rule in favour of servants, and if I was to hold otherwise it would be a fraud upon the law.
Order against the deft. with costs.
CRAIGIE for Pltff
This was an application, by petition, to have an administrator set up to the estate of Isabella Kelly, deceased. The pltff. alleged that the deceadant, before her marriage with the deft., had given a bond to the pltff:, which was still due.
For the deft. it was objected, that the deceased having died without issue by her marriage with him, all her personal estate belonged to the deft. Upon her marriage the deft. became liable for her debts and might, in her lifetime, have been sued in the temporal court, but no one had a right to set up an administrator, for, in point of fact, she had no estate to be represented.
Dismissed with costs.
BLUETT for Pltff. ; DUMBELL for Deft.
Suit brought for possession of a cottage, garden, and small field, under a petition presented in April.
By deed of settlement, from the pltff's. father, of the estate of Tromode, the premises sued for were reserved to Margaret Bridson for life. She held them many years, and died on the first of March last, at which time, and ever since, pltff. had been off the Island. Before her death the field had been ploughed for oats. The preceding year, oats had been taken off the land, and the year before that, green crop.
The question was, whether the mere act of ploughing was sufficient to entitle the executor of the life int an executor's crop.
The DEEMSTER held that it was sufficient to entitle the deft. to retain the lands, but an order was granted for possession of the house and garden with costs.
HARRISON and MOORE for Pltff.; JEFFCOTT for Deft.
Application, by warrant, for possession of a house, the property of the pltff, and tenanted by the deft.
Two witnesses were examined, who proved that Hugh Kneale, the Coroner of Rushen Sheading, called in their presence, at the house in question, where they saw the deft's. sister, who said that deft. was not at home. The Coroner then gave notice to the sister, in the presence of the two witnesses, that the deft. was to quit the house on the 12th May, and the sister said she would tell the deft.
Objected, for the deft., that this was no proof of notice upon the deft.
For the pltff, it was replied, that personal notice was not required, and that it would be an injurious practice if it were, as tenants would keep out of the way at noticing time on purpose to defeat their landlords.
Per Curiam. — There is no evidence of notice. The law requires a personal notice. Dismissed.
DUMBELL for Pltffs.; BLUETT and FLEETWOOD for Deft.
The suit was brought by the pltffs. to recover £120, alleged to have been received by the deft. for the pltff's. wife before her marriage.
One witness was examined by the pltff, who proved, that he had paid the deft. the money claimed ; but, on his cross-examination, he admitted that the money had been previously assigned by the pltff. Ann to the deft., before her marriage, in trust for her use. The deft. produced the trust deed,
And the Court, thereupon, dismissed the suit with costs.
Objected, by pltff., that deft. was only entitled to one day's costs ; because, on the first day, the cause was continued at deft's. instance, whereas he might have made the same defence he had done today.
For deft. — It has always been held that a deft. was entitled to one day's continuance, and the costs to abide the result of the suit. Per Curiam. — The defence is a deed in the deft's. own power; he might have produced it on the first day as easily as now. The costs are at the Deemster's discretion, and I can only deal with each case according to its peculiar merits, and in this case I can allow but one day's costs.
QUAYLE for Pltff.; BLUETT for Deft. Fargher.
The deft. Johnson appeared in person, and pltff's. advocate then called the other deft. Fargher, who not appearing, a presentment was moved for.
BLUETT suggested that no presentment could be granted unless the certificate was produced; nor was the pltff entitled to a continuance. He was employed to appear if the deft. was legally . summoned, but not otherwise. Nor could the Court continue the cause, unless a certificate of summons was produced to prove that the cause was really depending.
QUAYLE submitted that he was entitled to move both for a presentment and a continuance, and might get the certificate afterwards. The advocates were not paid for doing any part of the business out of court; and if this was to be the practice of the court, the Coroners ought to be ordered to attend. He moved for a presentment against Fargher, and continuance of the cause, with liberty to produce the certificate when obtained.
Per Curiam. — The practice has been very long settled, and it is the same in the Chancery Court. You cannot have a presentment without producing the certificate, nor can I continue the cause unless you can shew me that the parties have been summoned.
DUMBELL for Pltff ; QUAYLE for Deft.
The pltff, by his petition, claimed one-half of a house, out-house, and garden, under a certain deed, set forth in the petition, and prayed that the Deemster would order the Setting-Quest of Arbory to make a division of the property between him and deft., and that deft might be ordered to deliver up possession of one-half of the premises to the pltff., and deft. might be ordered to pay costs.
QUAYLE, for deft., objected, that the suit was improperly brought,. for that the pltff. ought, first of all, to obtain his order of possession of the premises, because the title was disputed, and then seek the division.
DUMBELL argued, that the better practice was to accomplish both objects by one petition, as it saved costs to the parties. There could be no advantage in having two suits.
Per Curiam. — I think the form of the petition is sufficient. The right to the property being proved — the division follows, as a matter of course. Let the petitioner proceed to prove his right.
QUAYLE for Pltff. ; BLUETT for Deft.
Pltff. brought this suit to obtain execution for the amount of a bond and security.
Objection was taken, upon behalf of the deft., that the bond was the joint, and not the several, bond of the deft. and William Gawne, Sen., deceased. The deceased had only a life interest in the lands given in security, but his personal estate was liable for the debt, so far as it was solvent, and, therefore, the deft. ought to be made a party, in his capacity of administrator to the estate of the said Wm. Gawne, deceased, as well as in his own right.
The Court held with the deft., and continued the cause for the pltff. to amend his suit by making the representative of the deceased co-obligor a party deft.
18th July, 1845.
CORLETT, V. G.
CRAIGIE for PUT; DUMBELL for Defts. Suit brought for £21.
Objected, by deft., that the Court had no jurisdiction. Administration was granted in July, 1842, and no claim was entered until 1845, the time of the Court's jurisdiction having expired more than two years ago.
Pltff., in reply, offered to prove that he had applied to the defts. in time, and that they told him it would not be necessary to enter a claim, as they would pay the debt; in consequence of which the pltff. had delayed to do so, but the deft. now objected to pay the debt.
The Court refused to hear the evidence, as a waste of the public time, in a matter where, if all were true that was stated, the Court had no jurisdiction. The pltff. might obtain redress in another court if he could prove his case as he stated it.
QUIRK, jun., for Pltff.; Deft. in Person.
Suit for £2 2s. 9d., money received by deft. as an advocate for pltff.
The deft. stated, that pltffl: had formerly employed him in professional business, and was indebted to him in the sum of 10s. Since recovering the money in question, the pltff had incurred a further debt to the deft. of 5s. ; the deft. had applied the money received to , the general account, and the balance had been tendered to the pltff: , QUIRK, for pltf, admitted the last charge of 5s., and the tender, but pleaded the Statute of Limitations to the first 10s. ; and denied that the deft. had any right to deduct that sum from the money he had received.
Per Curiam. — The statute would have been a good bar to prevent the deft. from recovering the debt at law ; but the deft. having recovered money for pltf: had applied it in payment of this account, and had tendered the balance.
Execution for the balance without costs.
BLUETT for Pltff.; DUMBELL for Deft.
The pltffl: (non-resident) sued out his action of arrest against the deft., to recover a sum of money alleged to be due by the deft. to the pltfff.
Deft., in February, obtained an order, upon his petition, for the pltff. to give security for costs. An order was granted accordingly, directing the pltff. not to proceed until he had given security for costs.
The order was served in March, and, in April, time was allowed to the pltff's. advocate to communicate with his client.
At the monthly Court, in May, security not having been given, DUMBELL, for deft., (before the Clerk of the Rolls in calling over the cause list) moved to have the suit dismissed.
BLUETT, for plff, moved for further time.
The two motions were set down to be heard before the then Governor, but he was unable to sit in court, and subsequently died before the matter was heard. Two days after the court in May, security was given in due form for the costs, and then a commission, previously sped, was completed and returned, and now lay with the Governor's Secretary unopened.
Upon the hearing this day, DUMBELL moved to have the suit dismissed, as of the court in May, which, he contended, it must have been if the matter had been heard in May. The security not having been given according to the order of the Court, the suit would have been dismissed; and he cited the case of Wood v. Lycett. The security subsequently given ought not to affect the matter, but it should be viewed as if argued in May.
BLUETT, for pltff., admitted that the matter should be heard as of the court in May, but submitted that it was open to him on that day to have shewn cause for further time, and the Court would have discretion to grant or refuse it. The order of the Court was merely general, and did not limit the pltff. to any particular time. Two days before the court in May, the pltff's. advocate received the one half of a note for £20, as the advocate could verify, and the letter produced would shew, for the purpose of giving bail. This shewed that the pltff. was in earnest, and all the Court required was to be satisfied on that point and protect the deft. from a mere vexatious suit, in which, if costs were awarded, they might not be recovered. Since the court in May the other half-note had arrived by post, the security had actually been given, and the commission completed and returned. It was not pretended that this could alter the case ; but it was relied upon that the production of the letter from the complnt. to his advocate, by post, in May, with the half-note, would have been sufficient to induce the Court to grant time for the half-note to arrive ; and, therefore, it ought to be held sufficient now.
The Court refused to dismiss the action, and suffered the security to stand as given.
CRAIGIE for Pltff.; DUMBELL for Defts.
Deft. James stood in contempt on a former court day. On this day the deft, Elizabeth Gelling was duly summoned, but the other deft. had not been noticed, and was not in court in custody of the constable.
Objected, for deft. Elizabeth Gelling, that the pltff'. had not used "due diligence;" and, therefore, the deft. Elizabeth was put to unnecessary expense, and had a right to be indemnified in her costs.
For pltff., it was urged, that due diligence was used by him, inasmuch as that he had put the contempt into the constable's hands in time ; but that the deft. had evaded the constables.
The Court allowed the pltff. to continue the cause upon payment of the costs of the day to deft. Elizabeth Gelling.
DUMBELL for Pltff.; CRAIGIE for Defts.
Suit brought to recover the amount of a promissory note payable three months after date.
Objected, that the demand was not made at the deft's. house, and that it was made on the day when the bill became due; whereas the deft. was entitled to three days' grace.
For pltff. it was proved, that when the demand was made in the street, the deft. did not require the demand to be made at his house, but said, he could not pay the debt until Laxey fair day. That this was not a bill of exchange entitled to three days' grace according to the custom of merchants, but was a mere note, not made payable at any particular place.
Per Curiam. — The deft. is not entitled to three days' grace, and has waived his right to the demand being made at his own house. Execution awarded with costs.
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