[from Advocate's Notebook, 1847]
6th Nov., 1845.
CLUCAS for Pltff. ; CORLETT for Deft.
Upon action for debt by a part owner, against the captain and ships husband, for his share of the earnings.
Deft. presented his petition to have the action dismissed for non-joinder of the other part owners.
Upon the part of the pltif., it was argued, that the suit was for an ascertained balance ; and by the authority of the case of Ouston v. Ogle, 13 East 538, any owner may singly sue for his share.
CORLETT, for petitioner, denied there was an ascertained balance.
CLUCAS.If we are at issue upon that point, that question must clearly be settled upon the merits, and not before.
Petition dismissed with costs.
CHANCERY COURT, 21st Nov., 1845.
DUMBELL for Pltff.; GELL for Deft. Margaret.
The personal estate of John Dinwoody, jun., being insufficient for the payment of his debts, this was an application for an order to make sale of certain real property in aid of the personal estate. Part of the real property, it was alleged under the following circumstances, was liable to be sold for payment of debts. William Dinwoody, sen., and Margaret his wife, by deed dated 11th March, 1837, in consideration, amongst other things, of a marriage had between their son William Dinwoody, jun., and the deft. Margaret, and in order to provide for their son John Dinwoody, who was in partnership with William, did give, grant, bargain, and for ever absolutely sell unto William Dinwoody, jun., a dwelling house, garden, and premises, part of the Bowling Green Estate, in the parish of Malew ; and unto William Dinwoody, jun., and John Dinwoody, equally between them, a rope-walk, rope-house, and premises, at the Bowling Green aforesaid. John Dinwoody, by deed,dated the 11th March, 1839, sold all his right and interest in the rope-walk, rope-house, and premises, to William Dinwoody,jun. William Dinwoody, jun., was the eldest son and heir apparent of William Dinwoody, sen., and Margaret his wife. By deed, dated 10th June, 1839, William Dinwoody, jun., sold the premises above mentioned to the petitioner, in trust, for certain purposes, and (amongst others) in case of the insufficiency of his personal estate for the payment of his debts, to make sale of the property in aid of his personal estate. This deed was not executed by his wife, the deft. Margaret. William Dinwoody, jun., died in 1839, having made his will, whereof he appointed the petitioner executor, who duly proved the same. William Dinwoody, sen., and his wife were living at the hearing of this cause.
GELL, for deft. Margaret, submitted, that the widow of William Dinwoody, jun., was entitled to dower in the property above mentioned, which was in his possession at the time of his decease. As to that conveyed by the deed of the 11th March, 1837, to her husband, it being to the heir apparent of the grantor, it was not liable to be taken in execution for the debts of the grantee, and, consequently, was not liable to be sold on his decease in aid of his personal estate. (See Analysis of Law of Descent as to real property in the Appendix to Jeffcotts Statutes.) The deed of the 10th of June, 1839, makes the property liable to the debts ; but the widow being no party to it, it binds the other deft., the heir-at-law, only. As to the property conveyed to John by the deed of the 11th of March, 1837, and by him sold to William on the 11th March, 1839, the widow is also entitled to her dower in that, William being the eldest brother and heir presumptive of John. The meaning of the term "ancestor" in our law had not reference to a father only, but to any person from whom lands may be derived by descent. As to the expressions " sold" and " sell" in the said deeds made use of, they are mere words of conveyance, and have no more effect than the words " settled" and "settle." Any consideration in the deeds, of a pecuniary nature, will not subject the property to debts ; such consideration being merely for obtaining present possession of that which would be supposed to fall to the grantee, in the ordinary course of events, at the decease of his ancestor.
DUMBELL for petitioner.The present case is different from, I believe, all previous cases relating to dower. The question arising in former cases being after the decease of the grantor or ancestor. In this case the original grantor is not yet dead, and, therefore, the claim of the deft. Margaret, as she makes it, cannot be sustained. Her husband was not the "heir" of his fathernemo est vicares viventis. To entitle his wife to dower in the property conveyed to him by his father, the property must have been in his possession at the decease of his father ; but he died before his father. At any rate the creditors are entitled to whatever estate the deceadant had in the property during the life of the father. As to the property sold by John, there can be no question as to its liability to be sold for payment of debts. A younger brother cannot be " the ancestor" of the eldest brother. The deed from John to William is, to all intents and purposes, a deed of sale for a valuable consideration, and, therefore, the property conveyed by it is subject to the debts.
Per Curiam.The Court is of opinion that Margaret Dinwoody is entitled to a widow right in the premises settled on her husband by his father, and in her husbands possession at his decease. The property to be sold in aid of the personal estate subject to such widow right. (See Brew v. Brew, Lib. Pli., 1811.)
4th Dec., 1845.
STEPHEN for Pltff. ; DUMBELL for Deft.
This was an application, by petition, to have an action dismissed under the following circumstances.
At the request of petitioners wife to prevent her husband, as she alleged, from making away with their property, the deft., on 30th August, 1845, took an affidavit against the petitioner for £20 and upwards. An action was sued out upon it, and put into the hands of a constable, who proceeded to the house of the deft. in the action, but the pltff. Cannell being there, refused to let the constable make any arrest either of the defts, person or of the goods ; the constable, however, took an inventory of them, leaving them as they were, and, in fact, no arrest was made. Subsequently another action was sued out bona fide by the pltff. for £40, and thereunder the constable arrested the deft. and his effects. A kind of bail bond was given by the Messrs Cubbon, and the goods were afterwards sold privately.
STEPHEN, for pltff., urged, that the suing out of the second action, pending the first, was illegal. In Banks v. Irving, Lib. Can., 1810, petitioner, on the 20th November, 1809, sued out an action of arrest against deft. and imprisoned him, and on the 1st February, 1810, the suit was dismissed non pros. On the following day Banks sued out a second action and arrested deft. Upon a rehearing, by application of the deft., the second action was dismissed with costs, without prejudice to pltff. recovering his debt, and the deft. to recovering damages as he might be advised. Secondly, the affidavit in the present case was informal, as it merely stated, " that the sum of £40 was due subject to any further set off which might be made to appear." it was objected that this was insufficient, because the debt was not stated with certainty and precision. The first affidavit was not open to the same objection. It stated, that the sum of £20 and upwards was due ; there the smaller amount is sworn to with precision, and more might be due. But, stating a sum subject to a set off is illegal, as stating the larger sum, whereas much less might be found to be due. This principle was shewn in the case of Austin v. Debnam, 3rd Barnewall and Cresswell, 139, where arrest for the debtor side of an account current was held to be malicious and without probable cause, as the balance only of both sides ought to be sued for.
DUMBELL.As to the case in 3rd Barnewall and Cresswell, it does not apply ; there a claim was made for a set off of £10 not admitted but here the Pltff. cautiously swears to her just debt, subject to a set off. As to the first action, it was a mere pretence at the instance of defts. wife, the affidavit was informal "£20 and upwards ;" no arrest was laid, nor notice given to the deft., and the suit was dismissed non pros, without any proceeding being had under it. Then as to the case of Banks, the deft. was arrested twice ; he was, in fact, a prisoner when the first action was dismissed, and, therefore, as the deft. could not be imprisoned a second time for the same cause of suit, the second action was dismissed ; but here, under the first action, there was no arrest, nor indeed anything done but a mere inventory taken, and that without the knowledge of the deft. Under the second action, there was no proper bail nor any that could be acted upon.
STEPHEN, in reply, relied upon the point, that the two actions were pending at the same time, for the same matter and things ; and, therefore, the second action was illegal, and must be dismissed.
COURT MINUTE.The affidavit is insufficient to ground an arrest against the petitioner for £40. Action dismissed without prejudice to complnt. in the action proceeding to recover the money, said to be due and owing to her by the petitioner, as she may be advised.
9th Feb., 1846.
HARRISON for Pltffs. ; Deft. in Person.
Suit to recover £4 house rent due 12th November last. Debt admitted, but
Objected, by deft., that there was no lawful demand. The pltffs. advocate met the deft. in the street, and there demanded the rent ; whereas, it was contended, a demand for rent ought to be made at the house.
For pltff., it was submitted, that the deft. had waived his right, by not insisting upon it when the demand was made in the street; at that time he made no such objection. This had frequently been ruled to be a waiver of the tenants right to a demand at the house. The Court held with the pltff. The demand is good enough if not objected to at the time of its being made.
Execution with costs.
23rd Jan., 1846.
WILSON for Pltff. ; FLEETWOOD for Deft.
Suit, by warrant, for £18 3s. 6d., the amount of two promissory notes, the one payable on demand, and the other at two months.
Deft. denied the notes, and also pleaded that no demand had been made for the amounts.
For the pltff.If the deft. puts pltff. upon proof of the demand, he admits the notes and waives his right to have them proved. The deft. may select which point he chooses to stand upon, but cannot compel the pltff. to prove both.
Per Curiam. The deft. cannot do both, a denial of the demand is an admission of the notes.
The deft. then waived the proof of demand, and the cause was continued to prove the notes.
23rd Feb., 1846.
QUAYLE for Pltff. ; DUMBELL for Deft.
This suit was brought, by warrant, to recover £20, one years rent due by Mylrea to John Cain, which rent had been arrested in his hands under executions in favour of the pltff. Quayle against the said John Cain, both before and after the rent became due.
For the deft., it was stated, that nearly the whole rent had been paid, before it became due, by payments made at different periods. The arrest before the rent became due, was void and ineffective; and when this second arrest was laid, it was all paid, of which the deft. was ready to make oath in the usual form.
QUAYLE, for pltff.This is not a case when any discovery is required from the deft. upon oath, and which he would be bound to make ; but here the rent is due under a lease, and the lease is evidence of the debt. The Pltff. is now in the situation of landlord; and if the tenant pleads payment of his rent he must prove it in evidence, but not by his own oath.
DUMBELL.That would be an undue interference in the transactions between landlord and tenant ; if the payments are to be disputed the landlord must be made a party to the suit, and then his admission must be received.
Per Curiam. -- Although the demand is for rent alleged to be due under the lease, I think the deft. must be examined upon oath, according to the usual form of proceeding in such cases.
2nd March, 1846.
GILL for Pltff. ; Deft. in Person.
This was a suit, by warrant, to have a discovery, upon oath, from the deft. of what money he was indebted in to John Gick, against whom the pltff. Quine had execution in the hands of the pltff. Qualtrough, the Coroner of Rushen Sheading.
Under the execution, the Coroner had arrested in the hands of the deft. any money he might owe, or property he might be possessed of, belonging to the said John Gick. The deft. Killey was afterwards duly summoned before a jury in the usual form, but refused to be sworn ; wherefore he was summoned to court. The deft. was now examined on oath at the bar of the court, and admitted that he owed "a drinking score" to the said John Gick, but could not say how much he owed, never having had an account. He had no doubt it exceeded five shillings.
The pltff., upon this admission, moved for judgment for five shillings with costs.
Objected, that the deft. was not liable to costs where the money was arrested, and he might not be safe in paying it without a judgment.
Per Curiam.The deft. should have submitted to be examined before a jury ; but having forced the pltff. to bring him into this court for a discovery, he must pay costs.
Execution for five shillings, with costs of suit.
CHANCERY COURT, 5th March, 1846.
CRAIGIE for Pltff. ; CORLETT for Deft.
In this matter, the deft. filed a demurrer to the bill of Thomas Moore, and, under a petition to bring on the demurrer for a hearing, the complnt. was duly summoned on the 27th Feb.
CRAIGIE, for complnt., objected to the demurrer being heard this day, he (the complnt.s advocate) having been out of the Island until last night, and wholly uninstructed. The usual practice is, where a demurrer has been filed, to set it down to be heard next court.
Per Curiam.If any good cause can be shewn, the Court will hear the demurrer, but it is only the petition itself that is ordered to be heard.
CORLETT.The petition states that the demurrer is ripe for a hearing ; and although the practice is to set down a demugrer for hearing at the ensuing court, in all ordinary cases, yet it is equally the established practice to bring on plea or demurrer by petition, the only object being to give the party due notice. This has been done, and there is abundant cause for hearing the demurrer. The suit slanders the title of the deft., and prevents him raising money on his estate. This is a sufficient cause for a speedy hearing.
Per Curiam.The petition before the Court does not pray for a hearing of the demurrer, but only of the petition.
Demurrer set down to be heard next court.
5th March, 1846.
LAMOTHE for Pltff. ; DUMBELL, STEPHEN, and GELL for Defts.
Upon application for a receiver of the rents of Kerrhoodhoo, in the possession of the deft. Thomas Lace.
GELL, for the deft., sought to read the answer of Esther Caine, the other deft.
DUMBELL, for the deft. Lace, objected to the answer being read. The deft. Esther Caine had no interest in the matter of a receiver.
She was not in possession of, and had no right in, the estate, the rents of which were sought to be received ; and the answer of one deft. cannot be received in evidence against another. It ought not to be read.
LAMOTHE.The complnt. seeks a discovery from the deft. Caine, upon certain points connected with the sale of the property, and when that discovery is made, by the answer of the deft., it would be competent for the complnt. to dismiss the bill as to deft. Caine, and examine her as a witness. Her answer should now be read as an affidavit only.
Per Curiam.The answer of one deft. cannot be read as evidence against another. The appointment of a receiver would only affect the deft. Lace, and the answer of the other deft. cannot be read.
5th March, 1846.
HOWARD for Pltff. ; BLUETT for Williams, Deacon, and Co.;
DUMBELL in Person.
This was the third court, and complnt. now moved for a rule pro confesso against the defts. Williams, Deacon, and Co., and James Gandy and others.
BLUETT, for defts., wished to know if, when service was ordered upon defts. advocate in the Island, he must appear at the second court after service upon him, or if a deft., being non-resident, was entitled to have the benefit of the four attachments before he could be compelled to appear.
Per Curiam.Under substitution of service the person substituted is under, and subject to, the same rules as any other resident.
BLUETT then appeared for the defts. Gandy, and Williams, Deacon, and Co., and moved for time to plead, answer, or demur, and for a commission to take the defts. answer.
Objected, for complnt., that the motion for a commission to take the defts. answer was a waiver of the motion to plead or demur.
BLUETT, in reply.Both motions are consistent. There are some pleas which require an answer, and it is also possible for a deft. to demur to part of a bill, plead to another part, and answer to the remainder ; so that the motions to plead, answer, or demur, and for a commission to take the answer, were not only consistent and right, but absolutely necessary to enable a deft. to avail himself of each, any, or all of these defences, to which he was entitled singly or collectively as he might be advised.
STEPHEN, for complnt., then moved for a rule pro confesso against deft. Dumbell and certain parties for whom he had appeared.
DUMBELL stated, that he had filed a demurrer, and moved to have it set down to be heard next court.
CRAIGIE submitted, that it was too late to file a demurrer, as by the new rule of court, only one month is allowed the deft., and he must appear and plead at the second court, after which only one court is allowed him. Two months had expired since the deft. appeared, and moved for time to plead ; he had neglected to do ~o and the cornplnt. was now entitled to a rule pro confesso.
DUMBELL.The rule relied upon by the cornplnt. only applts in the case where there is no appearance entered. But the rule is different where the deft. appears, as in this case ; for there the rule is plain, "that after an appearance entered, and time allowed to plead, and deft. has neglected so to do, the deft. shall be allowed to give in his answer within such reasonable time as the Court may direct ; and if it be not given in within the time granted, then it shall he taken pro confesso without further service. But in this case no such order has been granted, no time has been limited, and, therefore, the demurrer is filed in due time.
The Court so ruled, and set down the demurrer to be heard next court.
5th March, 1846.
JEFFCOTT for Pltff. ; QUAYLE and DUMBELL for Defts.
This was a petition praying to have a mortgage of £800 apportioned on the lands of Scarde, and other places, whereof deft. Qualtrough was formerly proprietor, and who had mortgaged them on the 19th day of June, 1833, to Edward Gawne, (since deceased) with a collateral security on the estate of Ballachalogue. Deft. Edward Gawne was the executor of the mortgagee. On the 13th Jan., 1834, Qualtrough sold Scarde and two other parcels of the mortgaged lands to the petitioner for £940. The petitioner afterwards sold a portion of his purchased lands for £92 to Edw. Gawne, of Ballachurry, since deceased, and the deft. Thomas Gawne was his heir-at-law. The petitioner had not been paid the said purchase money of £92 by the guardians of the minor on account of the whole mortgage of £800 affecting the said premises. It was therefore necessary to apportion the said mortgage upon the lands respectively held by the said Qualtrough, Gawne the minor, and the petitioner. The petitioner prayed that the matter might be referred to the Clerk of the Rolls to apportion the mortgage.
QUAYLE, for deft. Qualtrough, objected to his being made a party, he having sold his lands, as admitted by the petitioner, in an answer put in by him on oath.
JEFFCOTT objected to the answer being read, it being a pleading in another cause, and, therefore, no evidence in this.
Per Curiam.It appears that the answer is proposed to be read as being the declaration of the petitioner himself upon oath, that the present deft. Qualtrough had sold his lands. Surely this is the strongest evidence of the fact against the petitioner. The answer may be read.
QUAYLE then read the answer, whereby the petitioner stated, that the deft. Qualtrough had sold his remaining interest at a period long prior to the presenting of the present petition, and as the petitioner had made the deft. Qualtrough a party, knowing he had no interest, he moved the petition be dismissed with costs.
DUMBELL, for deft. Gawne.The mortgagee is unnecessarily made a party. The apportionment of the security he holds, amongst those who have become proprietors of the land, cannot affect his right to look to the whole or any part of the land for payment of his money. He has therefore no interest in the question before the court, and is entitled to have the petition dismissed with costs as to him.
JEFFCOTT, for petitioner.Qualtrough is the person under whom all parties claim, and it was necessary to give him notice of the proceeding. Gawne, being the mortgagee, was entitled to have notice, and could sustain no loss, because his costs would be paid with his security, as part of the charges incurred thereunder.
COURT MINUTE.Gawne and Qualtrough need no longer be made parties.
9th March., 1846.
BLUETT and CRAIGIE for Pltff. ; STEPHEN and QUAYLE for Deft.
In this case the cause was originally instituted by warrant, and was continued upon argument. Against this continuance a petition of rehearing was brought and dismissed, and then a petition of doleance was presented to the Governor, and it was held that the cause ought not to have been continued. The matter was then brought on again, before the Deemster, by a petition, reciting all the former proceedings ; upon which occasion the Deemster continued the cause for the deft. to prove that the parties named in the paper they had produced were joint contractors with the deft. From this continuance the deft. brought a petition of doleance, which was heard and dismissed by the Governor, and the cause was now again brought on for a hearing before the Deemster.
John Berkley Harrison appeared in court, and stated, that he would not allow the cause to proceed any further until the terms of an agreement made with him were completed.
For the other pltffs., it was submitted, whether one of the guardians (who was not the parent of the children), after having sanctioned the suit originally, could now come in, and dismiss the suit by withdrawing from it, to the prejudice of the ward, without the approbation of the other Pltff., who was equally a guardian.
Held, that one pltff. withdrawing his name, the suit must be dismissed.
13th March, 1846.
CRAIGIE for Pltff.; DUMBELL for Deft.
This suit was brought, by petition, for recovery of a promissory note passed by deceadant to pltff.
The note was admitted last court, and deft. took a continuance to prove a special case, and came this day with his witnesses ready to prove his case.
The pltff. finding that lie would require a copy of a deed from Record, moved for a continuance to produce the copy.
Deft. objected to a continuance being granted, except upon payment of the costs of the day. it was conceded that on the first day either party might move for a continuance without costs ; but this being the second court day it was contended that both parties were bound to come prepared.
Vicar-General CORLETT.Continuance can be granted only upon pltffs. paying costs of the day.
13th March, 1846.
CORLETT, V. G.
HAINING for Pltff. ; FLEETWOOD for Deft.
On the 14th February, 1845, administration was taken out to the estate of John Cain deceased.
On the 2nd January, 1846, the pltff. entered his claim against the estate for £4, in the usual form at the Ecclesiastical Registry.
On the 10th March, instant, the deft. was summoned to court, and now, on the hearing, deft. objected that the Court had no jurisdiction, as the law required that the claim should not only be entered, but effectually prosecuted within twelve months from the granting of the administration. In this case, it was true, the claim was entered in time, but no steps were taken to prosecute it until the time had expired. The pltff. might, therefore, seek redress ~ Equity, but this Court could now afford him no relief.
The Court held the objection good.
13th March, 1846.
CRAIGIE for Pltff.
This was an application to affiliate an illegitimate child. The deft. did not appear, but the pltff. affiliated the child, and then her advocate moved for the costs of the affiliation.
Per Curiam.I cannot grant an order for costs in the absence of the party. If a deft. stands in contempt, and the pltff. has a claim for lying-in expenses, or maintenance, she may affiliate the child, and move for a contempt against the deft. to establish her claim for the money due ; but if there be no money due, and the affiliation only is sought for, then if the deft. stands in contempt, the pltff. may move for the affiliation, but in such case, I should grant no costs behind the back of the deft., but if the costs are not relinquished, then she may move for, and enforce her contempt, and hold over the affiliation until the deft. is forced to appear.
13th March., 1846.
CORLETT, V. G.
CRAIGIE for Pltff.; DUMBELL for the Widow.
The question raised was, whether the administrator or the widow of a deceased member of the Artificers Society was entitled to the sum of £10, payable after decease of a member.
The Court made the following judgment :" I am of opinion that the defts. are liable to pay the sum of £10, in the following proportions, that is to say, to the Pltff. the sum of £4 10s. to defray the funeral expenses of the deceased, which were paid by the pltff., and to the deft. M. A. Quinney, the balance thereof, that is to say, £5 10s., as the widow of the said deceadant, and the same is therefore hereby ordered and adjudged accordingly."
30th March, 1846.
BLUETT for Pltff. ; DUMBELL for Defts.
Suit to recover £30, and interest, the amount of an I 0 U, given by the deft. to pltff. upon the blank half of a letter addressed by post to the pltff.
The deft. admitted the I 0 U, but claimed a set off of four items, three of which he left to the pltffs. oath or declaration, to be made before a magistrate in England, where he resided ; or, otherwise, he claimed a right to prove these items on his own oath, according to the practice of the court.
For pltff. it was replied, that he was prepared to prove his case by witnesses, and the deft. ought to be prepared to prove his set off in like manner, and it was submitted that the practice was not completely settled.
Per Curiam.The practice is settled, and I think it a very good one. The deft. would have a right to file a bill in Chancery to obtain his object, and by a simple proceeding in this court, where the deft. consents to it, all that expense is saved. It is, therefore, a public benefit, and the pltff. must either consent to give his oath, as to the credits claimed, or I shall allow the deft. to be sworn to those facts.
The pltff. submitted to the judgment of the Court, and a declaration, made by the pltff., before the Mayor of Liverpool, was produced upon a subsequent court day, and the Pltff. obtained a judgment in his favour.
2nd April, 1846.
GELL for Pltlf. ; JEFFCOTT for Deft.
This was an application, by petition, complaining that the petitioner stood imprisoned under an order, granted by the High Bailiff of Peel, on the 17th March, 1846, at the instance of James Cooil, Chief Constable of Peel ; whereby he was ordered to enter into bonds in the Rolls Office, with sufficient sureties, at the discretion of his Excellency the Lieutenant-Governor, for the preservation of the peace, and to pay the expenses of his imprisonment. That the order was granted on the affidavit of Cooil, sworn before the High Bailiff, in which he deposed that the petitioner had been making a disturbance, and had committed a breach of the peace on the said James Cooil. On the 19th March petitioner was ordered by the Governor to be discharged upon his own recognizance in £20, and two sureties in £10 each.
The petitioner now complained that his imprisonment had been illegal, forasmuch as that the affidavit under which he was ordered to be imprisoned did not state the deft. was apprehensive the petitioner intended to do him any future bodily harm. The complaint made in the affidavit was for a matter which might have been tried before two magistrates ; and it was argued, that they might upon the merits have granted or refused their order to have him imprisoned.
For deft., it was argued, that such committals were constantly made. In the case of Wm. Kinnish, the High Bailiff of Douglas had, only a few days since, made a similar committal, and it was essential the authority of the magistrates should not be interfered with. A most violent assault had been committed by the petitioner upon the constable, and the public peace had been broken. In the High Bailiffs commission he is expressly authorised " to command the peace, suppress riots, and commit offenders."
Per Curiam.The committal is wrong under the circumstances. The affidavit is insufficient, apparently being made by a private person, and not stating any apprehension of future injury. If the constable had been assaulted as constable he might immediately have apprehended the party under the Magistrates Act, and have brought him before the High Bailiff; and then the High Bailiff, under the Statute of 1763, might have committed him. The case of Kinnish is not in point. It appears by the record, that the offender had been apprehended, and was brought before the High Bailiff, and lie committed him. That conviction was correct.
2nd April, 1846.
LAMOTHE and DUMBELL for Pltff. ; CORLETT for Deft.
Application, by petition, for leave to examine witnesses in a case pending in the court by bill, to restore the credit of a witness whose testimony had been impeached by other witnesses having been examined, who swore they would not believe him on oath, and gave their reasons for saying so.
It was alleged, for petitioner, that other witnesses could prove, that these reasons were founded in error ; and that, in fact, the petitioners witness had sworn truly at the time, and upon the occasion referred to by the impeaching witnesses.
For deft., the application was resisted upon the ground, that the investigation would be endless, as, of course, the deft. would be entitled to impeach the evidence of the witnesses last produced, and then the pltff. might apply again, and so on. The evidence of the witnesses impeached was of minor importance, and not essential to the merits of the case.
Per Curiam.If immaterial, why did you impeach the witnesss credit ? That is, however, no part of the question before the Court.
For petitioner, it was replied, that the practice was a just and usual practice, and was well established. The last case, Shimmin v. Downs, in 1834, in which it was so ruled, was strongly contested ; but the Court allowed the application, and the witnesss credit was effectually restored.
The Court granted leave to examine.
2nd April, 1846.
BLUETT for Pltffs. ; DUMBELL, QUAYLE, STEPHEN, and OTHERS, for Defts.
This was an application, by petition, to be allowed to revive a bill and action in Chancery, against the representatives of three deceased defts.
For some of the defts., it was objected, that the practice of summoning all the defts. in a bill of revivor was exceedingly injurious and unnecessary ; and in such cases as this, might lead to very great expense.
For complnts., it was admitted, that the practice of summoning all the defts. to revive a bill against some of them, was not only unnecessary ; but, in this case, where there were one hundred and twenty-two defts., it was also exceedingly expensive, and pressed heavily against the complnts. In a case where all the other defts. were in court, it was quite unnecessary they should have any other notice than what they would obtain by attending to the proceedings in court. Under a bill to bring into court the representatives of some of their co-defts. who had died pending the suit, the bill of revivor was a mere recital of proceedings of which they had full cognizance already, and no good could arise from noticing them, nor any injury result from not giving them notice out of court.
The Court ruled, that, for the future, in every case where there are more defts. than one, and part of them die, if the cornplnt. revives the suit, he shall not be required under the bill of revivor to summon the surviving defts., but only the representatives of the party or parties against whom the bill is sought to be revived.
6th April, 1846.
This was an application to be exempted from serving on juries, upon the plea of the applicant being a parochial overseer.
GELL relied on the Statute of 1776, by which it is enacted " that all and every surveyor and surveyors doing or performing their duty and office shall, during such their office, be exempt from all other parochial services." And it was argued, that forasmuch as the surveyor held his office only by virtue of that act, and was bound to perform all the duties imposed upon him by the act (which might, in fact, require his daily attendance) he was, therefore, entitled to all the privileges and exemptions intended to be secured to him by the act. It was also argued, that the Jury Act of 1832, did not in words, nor of necessity by implication, repeal the Act of 1776, by which the applicant claimed to be exempted.
Per Curiam.By the Jury Act it is stated " that any man (except as thereinafter excepted) between the ages of twenty-one and sixty years, &c., shall serve." As the "parochial Surveyor" is not mentioned in the list of parties to be excepted, I have no power to relieve him, against the express words of the Act.
CHANCERY COURT, 7th May, 1846.
HARRISON for Pltlf. ; GELL for Deft.
William Dinwoody, sen., and Margaret his wife, by deed, dated 11th March, 1837, did, for certain considerations therein mentioned, give, grant, and sell, unto their son John Dinwoody, a dwelling-house, garden, and premises, therein described, to hold unto him "his heirs, executors, and assigns," from and immediately after the decease of the surviving grantor ; and also did give, grant, and sell, unto William Dinwoody, jun., and the said John Dinwoody, in equal shares and proportions, a certain field, together with a newly built dwelling-house thereon (the whole of the said property being part of the Bowling Green Estate in the Parish of Malew), to hold unto them, their "heirs, executors, and assigns," from the day of the date of the deed, the said William Dinwoody, sen., and wife, reserving, nevertheless, to them and the survivor of them, the rents, issues, and profits, of such field, house, and premises. John Dinwoody was the second son of the grantor, William Dinwoody.
The personal estate of John Dinwoody being insufficient for the payment of his debts, this was an application to have certain real estates, including the above-mentioned property, sold in aid of the personal estate. The deft. is the nephew and heir-at-law of John Dinwoody.
HARRISON, for petitioner, shewed the insufficiency of the personal estate, and moved for the usual order.
GELL, for deft., contended, that the first-mentioned house and premises were not liable to be sold, inasmuch as they had never vested in John Dinwoody, the words of the deed being, " to hold from the day of the death of the Survivor of the grantors ;" and that such property would not vest until that event, was evident from the deed itself, the house and premises conveyed to William and John being, " to hold from the day of the date of the deed," in direct contrast to the wording of the other bequest.
HARRISON submitted that the first-mentioned house and premises vested in John Dinwoody on the delivery of the deed ; the conveyance " to him, his heirs, and assigns," gave him a right to dispose of the property subject to the interest of the grantors. The words "from the day of the death" of the grantors, are merely as to the time when possession could be had. A grant of lands with possession in futuro is good by the law of this Island.
Per Curiam.All the property conveyed by the deed of the 11th March, 1837, to John Dinwoody, " his heirs, executors, and assigns," is liable to be sold for his debts.
Ordered to be sold accordingly.
9th May, 1846.
DUMBELL for Pltff. ; CORLETT and CLUCAS for Defts,
Held, in this matter, that, under an application for injunction, where the defts. have been noticed under the petition for injunction, and also under process upon the bill, an appearance to argue the injunction is an appearance to the bill.
9th May, 1846.
STEPHEN for Pltff. ; Deft. in Person.
The bill having been referred for impertinence at the first court in March, and report made in the April court, "that there was impertinence," the deft. had presented a petition to have the impertinent matter expunged, and due notice was given for its hearing this day.
Upon calling over the cause list, complnt. moved to amend the bill, and strike out the impertinent matter, and he objected to the defts. petition as premature, and putting him to an unnecessary expense, the complnt. claiming to have had the right to file exceptions to the report up to the present day.
For deft., it was replied, that the mode adopted by him was not only proper and usual, but the only course he could adopt. He could have no knowledge that the Pltff. would make the present motion ; and now that it was made, it could only be supported by reference to the Clerk of the Rolls report. He, therefore, moved for a judgment with costs.
Per Curiam.It appears that the course pursued by the petitioner has been rendered necessary by the course adopted by the complnt. I think, therefore, he is entitled to a judgment upon his petition.
Judgment with costs accordingly. His Honour the Clerk of the Rolls to strike out the objectionable matter, according to the terms of his report.
25th May, 1846.
BLUETT for Pltff. ; HOWARD for Defts.
Elizabeth Benson, widow of the late Jonathan Benson, a deceased member of the Kirk Braddan Friendly Society, brought this suit to recover the sum of £3, alleged to be due as a balance of a sum of £10, payable under the rules of the society, to the " widow or administrator" of a deceased member. The club had already paid her £7, but before she could obtain the balance, Wm. Watterson, one of the present defts., who held an execution unsatisfied, obtained against the deceased in his life time, placed it in the hands of the Coroner of Middle Sheading, who thereunder arrested the balance of the money in the hands of the President and Stewards of the Club, as being part of the deceadants personal estate, and liable to be taken in the first instance for the payment of his debts.
It was argued, for pltff., that the £10 was intended by the club as a benefit to the widow, and to secure a decent funeral to the deceased. Secondly.That the supposed arrest, laid under the execution of Watterson was altogether void, the whole suit and its consequences having become abated by the death of the sole deft., and therefore no proceeding could be taken thereon.
For deft. it was submitted, that administration should have been taken out to the estate of the deceased ; that the widow, as such, had no authority to discharge the club from the payment of the money, which of necessity formed part of deceadants personal estate. That although the death of a sole deft. would abate a suit pending, it could not avoid a judgment obtained in the lifetime of the deft. That if the arrest was not lawful so as to entitle the pltff. to obtain judgment against the club under his execution, it was, at any rate, a valid notice to the club of an existing debt due by the deceased, so as to make it necessary for them to hold the money until an administration was set up to the estate of the deceased member.
The Court took time to consider the judgment, on account of its general importance to all the clubs in the country. A subsequent day the Deemster granted execution in favour of the pltff.
27th May, 1846.
CORLETT, V. G.
DUMBELL for Pltff. ; HAINING for Deft.
Suit for £1 0s. 10d. for funeral expenses for the deceased, and £1 7s. 7d., one-half of a general debt contracted before the decease, and for which deceadants estate is liable.
HAINING, for deft., objected, that the Pltff. had sued out execution for the whole debt against the deft. alone ; and having made his election to sue in the Temporal Court, he could not now sue the same party in the Ecclesiastical Court, otherwise the deft. might have two judgments against him for the same debt, and be subject to be imprisoned under both processes ; by contempt under the order of the Ecclesiastical Court, and by a jurys return under the execution.
For Pltff., it was replied, that this was not in any way a case of election ; as a general principle of law a husband is doubtless liable to be sued in the Temporal Court for the whole debt, leaving him the right also to establish his claim for the one half of the debt when paid by him, against his wifes estate, and the whole of the funeral expenses must be paid out of "the deads part." A creditor, therefore might pursue both remedies at once, and recovery under the execution would discharge both claims, but recovery under the Ecclesiastical Court order would only discharge what the law called the " deads part," and the balance might still be sought for under the execution. It was true that in this case the deft. was the administrator of the deceased ; but that did not alter the question, if, as stated, the Pltff. had a right to look to both sources of payment at the same time.
The Court took time to consider the question, and afterwards granted an order for £2 14s. 5d. as claimed.
12th June, 1846.
FLEETWOOD for Pltff.; DUMBELL and CRAIGIE for Deft.
In 1844, an action was sued out by the pltff. to hold the deft. ( a native, who was then about to leave, and did actually leave, the Island) to bail for the maintenance of an illegitimate child. In 1846, the deft. returned, and as was proved, had taken a house for the purpose of setting up in business for himself in the town of Douglas. Upon his return lately, he was arrested, and after bail given, the action was transmitted, and now came on to be tried.
The Pltff. having affiliated the child, the only question now to be raised was as to the costs of the action.
For deft. it was urged, that he was not liable to costs, as the action had been unnecessarily continued in the Chancery Court for nearly twelve months, and that as deft. was a native of the Island, and had been trading in Douglas, and keeping a furnished house previous to the arrest of his person, he ought not to have been arrested, but should have been summoned under the action
Several witnesses were examined on behalf of the Pltff., whereby it appeared that the action had been in the constables hands for a very long period before the arrest, the deft. having evaded the officer, and that the deft. had admitted he had been keeping out of the way.
For pltff. it was contended, that there was a sufficient case made out to entitle her to a judgment for the demand and costs. As to merely summoning the deft. under the action, without arresting him, as was urged for the deft., had such a course been adopted, the pltff. would have been deprived of the benefit of security for the future maintenance of her child, but by causing an arrest to be made, the Pltff. had obtained security for such maintenance.
Per Curiam.The Pltff. has, I think, made out such a case as to induce the Court to grant judgment for the amount claimed.
Judgment accordingly granted, with £4 costs.
COMMON LAW, 9th July, 1846.
Pltff. in Person.
The Deemster had been applied to by the Pltff. for an order for the Great Inquest to appear on the premises, near the shore at Ramsey, in the parish of Maughold, upon a charge that encroachments had been made upon the public rights.
The Deemster had issued his warrant directing the Great Inquest to appear upon the premises on Friday, the 12th May, 1846, and to return their verdict at the Common Law Court to be holden at Ramsey, the 19th May. At that court they appeared, and time was allowed to the parties charged with the offence to afford them an opportunity of making their defence before the Inquest.
This day the Great Inquest were summoned by the pltff. to make their return, and, upon being called, the Foreman stated that they had no presentment to make.
LAMOTHE contended, that being ordered by his Honours warrant to return a verdict into court, they must do so in writing, whatever that verdict might be, in order that the proceedings might go to Record.
The DEEMSTER ruled with the pltff. ; but on calling over the Great Inquest, there were only eleven present. The absent member was then called, and not appearing, upon motion of the pltff. was fined £3.
At Common Law, 17th Nov., 1846.
The Great Inquest again appeared in court, and LAMOTHE moved that they be ordered to make their return.
They stated that they had no return to make.
The DEEMSTER charged them that they must make a return upon his warrant.
The matter, however, went off upon LAMOTHE undertaking to withdraw the warrant, as the Great Inquest were to be discharged and a new one sworn this day.
13th July, 1846.
QUAYLE for Pltff. ; DUMBELL for Defts.
On the 7th July, 1845, the pltff. sued out a Deemsters Jury Warrant in his own name, as Foreman of the Great Inquest of Rushen Sheading to find out and discover the persons who had been cutting the scrars or surface-sod of the mountains in the said sheading, and removing the same contrary to law. On the 23rd of July the jury appeared on the premises, many witnesses were examined, and their evidence was committed to writing. On the 23rd August, further depositions were taken, and, on the 24th June, 1846, a further witness was examined. Thursday, the 13th July, the Jury of Inquiry appeared in court to tender a return, finding " that the deft. John Mylchreest and others had cut scrars" and the said defts. were now summoned to have the said return delivered into court.
Objected..That the pltff. having ceased to be Foreman of the Great Inquest on the 5th July instant, the matter fell to the ground.
For pltff., it was urged, that he was only prosecutor by virtue of the office he held ; that the suit was, in fact, the suit of " the Foreman of the Great Inquest," whoever he might be : it was an office that never died and the individual name was immaterial.
The Court held the objection good and refused to receive the verdict.
DEEMSTERS COURT, 2nd Nov., 1846.
DUMBELL for Pltff. ; BLUETT for Deft.
Pltff. moved for execution for £8, the amount of one years rent in preference.
Objected, for deft., that his effects were now in the hands òf the Coroner, who, by law, was bound to retain in his hands the current years rent for the landlord ; but, if the present execution. was granted and paid, it would enable the pltff. to obtain two years rent in preference.
For pltff., it was admitted, that a landlord had no right to two years rent in preference out of the defts. goods ; but the law said, " that nothing should deprive a landlord of one year in preferences" therefore he had a right to the present execution as prayed for; and if, when the rent became due, another tenant was found on the premises, the landlord would then have a right to look to that tenant for the present years rent.
Per Curiam.It has always been the practice to grant execution for one years rent in preference. I am, therefore, only following up what has been done before. It will be for the other judgment creditors to see to the distribution of the effects of the deft. according to law. A landlord can only have one years rent in preference.
5th Nov., 1846.
CORLETT for Pith. ; DUMBELL for Deft.
This was an application, by petition, to obtain leave to examine witnesses to the credit of the defts. witnesses.
Objected, that the petition ought to have named the witnesses to be impeached, and, being irregular in that respect, ought to be dismissed.
For pltff.If the petition sought to impeach the credit of any particular witness, no doubt the parties should be named who were to be attacked ; but here we state, that the deft. has closed his evidence, and we seek to discredit his witnesses, that is, all his witnesses.
Per Curiam. The petitioner may amend his petition by inserting the names of the witnesses.
COMMON LAW, 10th Nov., 1846.
STEPHEN for Pltffs. ; DUMBELL for Deft.
The Foreman of the Great Inquest stated, that he had a presentment to make against the deft. for erecting, and maintaining a gate and certain buildings across a common highroad at the end of Douglas sands.
Per Curiam.When was the nuisance erected of which you complain?
William Creer, the Foreman, said, "about seven years ago."
Deemster HEYWOOD..It is the duty of the Great Inquest to present only those things that are of recent occurrence ; but matters of complaint of long standing, must be tried in another way, viz., by any one of the public who feels himself aggrieved, bringing his action at Common Law.
DUMBELL, for deft., complained of the proceedings of the Great Inquest. Notice was given to the deft. to appear before them on a certain day and hour. He (Mr. Dumbell) had appeared for the deft. at the time appointed ; but there being only eleven jurors present, after waiting a considerable time, he went away. Afterwards the twelfth juryman was procured, and then the Great Inquest went into the matter, behind the back of the defts. advocate. The deft. had purchased the premises in question several years ago, with the wall standing which was now complained of; the deft. had not erected it.
STEPHEN, On behalf of the Great. Inquest, said, it is not in anyway necessary to notice a deft. to appear before the Great Inquest, although it is frequently done, out of mere courtesy. It is quite immaterial who erected the nuisance, because he who maintains it, is as liable in the eye of the law, as he who first erected it.
DUMBELL then offered to prove by witnesses that the Great Inquest had been treated with drink.
STEPHEN, objected, because that was a matter to be most solemnly inquired into by special application to the Governor for that purpose, and notice to the parties impeached.
Deemster HEYWOOD.No doubt that is the ordinary course.
DUMBELL.I trust your Honour will not caption the verdict until I have time to bring a special application to the Governor.
STEPHEN.If your Honour should grant the time required, I should hope that would not be allowed to vitiate the presentment, as the Great Inquest go out of office to-day.
Deemster HEYWOOD.If the Great Inquest persists in their presentment I must receive it, but I will hold it over a short time; and if no application is presented to his Excellency, I shall caption the return and return it to the Governor as of todays date. But I wish to know whether the Great Inquest persist in making their presentment after what I have said as to the law of the case ; if so, I am bound to receive it.
Creer, Foreman, said, " from the information laid before us, we feel it right to hand in our presentment."
The Court received the presentment.
COMMON LAW, 10th Nov., 1846.
DUMBELL and HAINING for Pltff. ; CRAIGIE for Deft.
The ordinary Common Law Court, according to the statute, was to. have been held on the 6th October last ; but owing to the lateness of the fishing and of the harvest, the Governor issued a proclamation that the court would be adjourned until this day. On the 6th October the Deemster attended in court, and adjourned it in terms of the proclamation, but the cause list was not called over.
DUMBELL and HAINING, upon the parishes being now called over, moved to have this cause entered upon the list, and continued, a summons not having been effected in time, although due diligence had been used.
On behalf of the pltff the Coroner was examined, and proved, that at eight oclock on the Friday evening, the 10th November, he went with witnesses to the defts. dwelling house, and remained there a considerable time, but he did not come home, and, therefore, no summons was effected.
CRAIGIE, for deft., objected, that it was not using due diligence to put the warrant into the Coroners hands only a few hours before the time for making the summons would expire.
Deemster HEYWOOD.I am bound to hold that due diligence has been used in this case, so far as the three days notice is concerned, because it is clear, that if the deft. had been in the way, he would have been legally summoned ; that is, he would have had three days notice.
CRAIGIE had a stronger objection to the cause being entered on the list, as there was, in fact, no summons whatever to the ordinary court of the 6th October, of which this was only the adjournment.
Per Curiam.The objection is clearly valid. If the cause list had been called over upon the ordinary court day, it was manifest there was no summons ; and notice to this, the adjourned court, cannot cure the first defect. The pltff. has, therefore, suffered a discontinuance.
COMMON LAW, 10th Nov., 1846.
STEPHEN, for Pltffs. ; DUMBELL, for Defts.
Presentment by the Great Inquest against the defts. for stopping an ancient water-course.
DUMBELL for defts. stated, that the deft. Isabella Dixon, had had no notice of the proceeding, having been for some time past, and still being, off the Island. It was ruled in the case of the Great Inquest of Middle against Mrs. M. Stuart, that she had a right to notice to the court before the presentment could be received.
STEPHEN.The Lockman has certified that he "left charge" for this lady ; if she was off the Island, that fact must be proved by the deft.
Evidence was then given to shew, that the deft. left the Island before the Great Inquest went on the premises, and that she had not yet returned.
Per Curiam.A left summons is a good summons if the deft. be on the Island at the time ; but, in this case, the deft. being off the Island, she has no notice either actual or constructive, and, therefore, the presentment cannot be received.
11th Dec., 1846.
CORLETT, V. G.
DUMBELL for Pltff.
This was an application, by petition, for probate of the will of Isabella Brew.
On the 22nd April, 1825, Robert Brew, and the said Isabella Brew, his wife, made their joint will, and thereby appointed Ann Looney, the petitioner, executrix. On the 9th November, 1832, upon the death of Robert Brew, the petitioner proved the said will, and probate was granted to her, Isabella Brew, the survivor, being now dead, the present application was brought by the executrix, praying, that probate of the will of the said Isabella Brew might be granted to her.
Upon hearing the petition, petitioners advocate proposed that the probate should be extended upon the office copy of the former will now produced.
The VICAR-GENERAL doubted whether he could grant probate without production of the original will.
DUMBELL submitted, that the parties were in the same situation as where probate of a will had been granted in England, and the executor afterwards administered here ; the original will, in such cases, was never produced, nor ever could be, yet probate was granted here, upon mere production of the English probate. In cases of joint wills, proved here, the Court, if there was any doubt or opposition, could always order the production of the original will ; but, in this case, there is no opposition, the next of kin consenting to the executrix being sworn.
Per Curiam.If the party, who has a right to oppose, consents to the petitioner being sworn, she may be.
She was sworn accordingly.
NOTE.What proof was there in this case of the execution of the will by Isabella Brew, her state of mind, &c., matters which would not, of necessity, form any part of the inquiry when probate was granted of the will of Robert Brew ? The consent of parties was the only ground of the Vicars judgment.
21st Dec., 1846.
STEPHEN for Pltff ; DUMBELL for Deft.
Suit, by warrant, to obtain the Deemsters order for the deft. to join the pltff. in repairing the boundary wall between them.
Objected, for deft. that the application ought to be by petition, and not by warrant.
Objection held good and suit dismissed.
22nd Dec., 1846.
DUMBELL and HARRIS for Pltff. ; STEPHEN and CRAIGIE for Deft.
The pltff. presented his petition, praying for an order of imprisonment against the deft., a jurys return of no effects having been obtained under an execution against the deft., in favour of the pltff., for the sum of £22 4s. 0d., two years of ground rent, payable out of certain lands described in the execution, which bore date the 20th July, 1846. Pawn was delivered on the execution by the deft. on the 4th August following, in the ordinary way. It did not appear that the lands out of which the ground rent was payable were given in pawn. On the 5th August the jury convened by the Coroner made a return that they could not discover any effects of the deft. to discharge the execution, and no notice was taken of the land by the jury.
STEPHEN shewed cause against the prayer of the petition.
A witness was examined, who proved that,as treasurer of the Laxey Mining Company, he held in his hand a dividend of £488, payable on certain shares which stood in the name of Sarah Ann St. John. On cross-examination, the same witness proved that notice had been served on him, of a deed, executed by the said Sarah Ann St. John, conveying the shares in question to the trustees of the Joint Stock Bank. That he had also been noticed by the deft. of the will of Miss St. John, by which the shares in question were bequeathed to another person than the said Sir William Hillary. The deed to the trustees was duly proved by another witness.
STEPHEN urged, for deft., that no order could be granted against him, for, as executor, he was not personally liable. That the proceedings, on the face of them, shewed there was a source out of which the debt might be levied, viz., the lands, for the ground rent of which the execution was granted ; yet, this course did not appear to have been applied to. Again, the witness proved there was a dividend due by the Laxey Mining Company, and the deed produced did not shew any title to these dividends, as it was a mere conveyance of the shares, upon condition, for the payment of any balance that might become due to the bank, whereas there was no evidence before the Court that any money was due. Even if the will did convey these shares to others, still the executor must first obtain the shares, as they are prima facie liable for debts.
DUMBELL, in reply.We must presume the Coroner and jury have done their duty ; and evidence being given by the deft. to that point, there must have been some good reason to prevent the lands from being attached. The shares were conveyed away by the testatrix in her lifetime, and the executor could take no right in them. The will specially devised these shares to others, after payment of the bank debt ; and even if there were no debt due to the bank, the executor could not apply the shares to the payment of the general debts of the testatrix, until he had fully administered the deceadants estate, of which there was no evidence before the Court.
Per Curiam.There is no good cause shewn to me why the order of imprisonment prayed for should not be granted.
END OF PART I.