[from Advocate's Notebook, 1847]
LIB. CAN., 4th Feb., 1763.
This was a petition stating that the petitioner had a dispute with his neighbour, touching the boundary and dimensions of an intack, which he had in Lezayre, which was controverted before a Great Inquest of Ayre Sheading, and afterwards before a Long Jury of twenty-four, who made a verdict against the petItioner. The verdict was deposited with William Crowe, foreman of the said Long Jury. The petitioner charged the foreman to attend at the Comptrollers Office with the verdict for the 29th Nov. last, that the petitioner might be able to traverse to the twenty-four Keys. Crowe stood in contempt, but had, in fact, sent the verdict to Record some days before, and one of the clerks had received it. The Comptroller not knowing this, granted a presentment against Crowe. On the 6th December, petitioners attorney made application to be allowed a traverse to the Keys, but the verdict being found upon Record, the traverse to the Keys was refused on account of the lapse of time. The petitioner charged that Crowe had deceived him, by falsely pretending the verdict was not recorded. The petitioner therefore prayed he might be allowed to traverse, under the circumstances, notwithstanding the lapse of time.
Upon a hearing the Court made the following judgment :" It appears that the petitioner has been amused by William Crowe, in the petition mentioned, that he had not returned the verdict of him and his fellows, &c. &c. And it doth not appear that any application, search, or inquiry was made at the office for the verdict, and that twenty-one days had elapsed from the time of recording before the petitioner applied to enter a traverse. The Court is of opinion the petitioner can have no relief against the Statute Law.
LIB. ScAc., 3rd July, 1783.
The pltff. complained, by petition, that the proprietors or persons employed in the lime-stone boats and other vessels carrying lime-stone from Castletown to Douglas, Ramsey, and the other northern parishes, had " of late loaded their respective boats or vessels on the Fluking Pool Bank, by means whereof the said bank has been considerably lowered and lessened. That the said bank has hitherto been the security of the public highway from the said town to Douglas, the Bowling Green House, and other premises and property of your petitioner and other persons. That the sea (which the said bank formerly used to break and keep off,) now with an inshore wind comes with great violence and rapidity over the said bank, owing to the lessening thereof as aforesaid ; and the said road, Bowling Green House, and premises, have of late been threatened with ruin by the violence of the sea. That the petitioner has remonstrated with the parties, but they still continue to load their boats to the great injury of the public. That the injury is more of a public than private nature, as the public would be most essentially injured in case the said road should be carried away; and, therefore, it became his Honours particular province, as guardian of the public, to interpose and prevent such public abuse, as no private convenience should be held where it comes in competition with the public advantage ; and the petitioner prayed his Honours prohibition.
Upon a hearing on the 3rd July, 1783, the Court made the following judgment
" It appears, that sundry persons have made a constant practice, in the season of the year, to take away the stones from the bank beyond the Fluking Pool, and thereby lowered the same so that the sea makes a free passage to, and incursion upon, the lands of the petitioner, and hath put the public to considerable expense in the protection and defence of the highway leading from Castletown to Douglas, notwithstanding the said defts. and others might have recourse to other parts of the shore where they might be accommodated with lime stones without doing any injury to the public road or private properties. And it likewise appeared to this Court that sundry persons do also take away sand and gravel from the end of the bulwark made for the security of the said road from the incursions of the sea, by which means the public will be put to an additional expense for defending the said highway. Upon consideration of what was pleaded, offered, and alleged by, and on behalf of, each party, it is hereby ordered that no person shall for the future be permitted to take or carry away any lime or other stones from the back of the Fluking Pool aforesaid, from opposite to the south-west end of the Bowling Green to the channel which leads into Castletown harbour ; and that no person do take any gravel or sand from within the space which lies between the said bulwark and the east end or corner of the Bowling Green aforesaid, and the sea. And that no person may plead ignorance hereof, it is hereby further ordered that the several Coroners whom it shall or may concern, do cause publication to be made at the several parish churches within their respective sheadings, that no person shall be allowed, for the future, to take away lime or other stones from the said back of the Fluking Pool within the limits abovementioned ; or dig or carry away any gravel or sand from within the said space between the bulwark and the east corner of the Bowling Green aforesaid, as they shall answer the contrary. But that they lawfully may supply themselves with lime or other stones at the foot of Castletown river, and sand or gravel from any other part of the sea-shore than the space above-mentioned and reserved.
" R. DAWSON."
LIB. SCAC., 5th Feb., 1789.
CALLOW for Applnt. ; LACE for Respndt.
Deemster Moore, on the 14th March, 1785, made a judgment between the parties to this appeal, whereby he decided that tenants left in possession after the 6th December, and having since tilled the lands, were bound to pay the current rent, and were entitled to retain possession of the lands ; and the landlords petition was dismissed with costs.
From this judgment the present appeal was brought, and the petition states, in substance, " That upon the decease of Margaret Kennedy, the applnts. mother, the estate of Ballacomish, in Trinity Rushen, descended to the applnt. as her heir-at-law, subject to a life estate in Margaret Maddrell, now also deceased. That the said Margaret Maddrell had let the said estate on lease to the respndts. to hold jointly for a term of years, if she should live so long, but determinable upon her death. That she died on the 8th June, 1744, when the estate vested wholly in the applnt., and he immediately gave notice to the respndts., although no way bound to do so, that his right had accrued as aforesaid, and they would have to quit on the 12th November following, but that he was willing to grant them new leases upon advanced rents. That the respndts. frequently applied for new leases, but terms were not agreed upon, and no new leases were granted. That after the said 12th November, the respndts. refused to quit possession, and the applnt. was obliged to bring his suit before the Deemster, which his Honour had dismissed."
On the 17th May, 1785, the cause was heard, but no judgment appears to have been then extended.
On the 12th November, 1788, the following query was submitted to the Keys: " The Lieutenant-Governor desires the opinion of the gentlemen of the House of Keys upon the following point of law " The lease of a tenant holding lands within this Isle having expired, and his landlord having given him legal notice to quit the premises at the end of the year, viz., the 12th November, when-ever it so expired, neglects to bring a suit to eject him before the 6th day of December then next following,does this neglect in the landlord give a right to the tenant, by Common Law of this Island, to continue to hold the premises for another year?
"Castle Rushen, 12th Nov., 1788.
"To the House of Keys."
It appears that the House of Keys were divided in their opinions, and gave the following answers : " We are of opinion that the landlords neglecting to bring a suit to eject or dispossess the tenant before the 6th Dec., gives a right to the tenant, by the Common Law of the land, to hold possession of the lands for another year, though the tenants lease expired on the 12th Nov., and that the deft. had previous notice to quit the possession of the premises upon the expiration of his lease. This appears to be law at the south side of the Island, and that suits to be brought for the dispossessing of tenants on the north side of the Island are not barred until the 11th day of December.
" As witness our hands this 14th Nov., 1788.
" Signed by nine of the Keys."
John Taubman, one of the Keys, gave the following answer : " In answer to his Honour the Lieutenant-Governors query,
I say, that warning is no way necessary at the expiration of a lease of lands. I apprehend the lease being expired is sufficient notice to the tenant to quit the premises at the end of his term ; but if a landlord suffers his tenant to hold over and continue in the posses-sion of the lands after his term or lease is expired on the 12th Nov. to the 6th Dec. following, without prosecution or suit before the Deemster to quit the premises, I should apprehend that is such an acquiescence in the landlord as would authorise the Deemster to continue the tenant in his possession for another year. I do not remember to have heard that the 6th of December was a particular day and time fixed upon and set apart by the Common Law of this Island to regulate and adjust such matters between landlord and tenant ; but I have heard that the 4th of Dec., commonly called St. Catherines day, is the utmost period allowed by the Common Law for masters and farmers to compel their hired men-servants to come home to their service ; and I should presume that this supposed custom between landlord and tenant, which is in some degree analogous to the custom and Common Law in regard to master and servant, took its rise from that particular custom.
" I acted as one of the Deemsters of this Isle in the late Deemster Taubmans decline and last sickness, and also for some time after his death, and I well remember to have heard and deter-mined causes between landlord and tenant in regard to houses, and that I ordered the tenant to continue his possession for another year after his lease or annual letting was expired, by reason, and on account of the landlords acquiescence in permitting the tenant peaceably and quietly to hold and continue his possession even for a shorter period than from the 12th day of Nov. to the 6th day of Dec. following, which I considered as founded on reason and common sense. As witness my subscription.
"House of Keys, 14th Nov., 1788."
Another body of the Keys gave the following answer
"May it please your Honour,We have, in obedience to your commands, deliberately considered the case transmitted to us by your Honour for our opinion, and do say, that we do not know of any custom, nor have ever been able to discover any law, practice, precedent, or adjudication, within this Island, save a determination of the Deemster, which is now pending by appeal before the Staff of Government, by which a tenant, whose lease has expired on the 12th November, doth, from the omission of the landlord to bring a suit to dispossess him before the 6th December following, become entitled to hold over the premises for another year, whether warning hath or hath not been personally given by the landlord to such tenant. If such custom doth exist, of which no evidence whatever hath appeared to us, though we have endeavoured to obtain the same, we are inclined to think, from its painful tending, it should be abolished.
" Signed by ten of the Keys.
" 15th Nov., 1788."
At a Court holden at Castle Rushen, 5th Feb., 1789.~
Upon bearing this appeal in presence of the attorneys, as well of the. applnt. as of respndt. on the 17th day of May, 1785, and upon reading the judgment of his Honour the Deemster appealed from, bearing date the 14th day of March, 1785, and the same having laid over until this day, and upon consideration had thereof, and of what was otherwise pleaded, argued, and alleged, on behalf of the parties respectively, this Court is of opinion the said judgment appealed from ought to be reversed, and the same is reversed accordingly.
LIB PLI., 8th May, 1786.
T. MOORE, D.
In this matter the complnt. filed his declaration at law, stating, " that the complnt. is entitled to a certain parcel of intack, situate on the south side of Sleiw Whallan mountain. That in the year 1724, Robert Maddrell, of Castletown, and Henry Quilliam, of the parish of Kirk Patrick, were licensed and allowed to enclose so much of the said Sliew Whallan as was then a common, and was no way prejudicial to highways, watercourses, and turbaries, as by the Governors license for that purpose, and the Great Inquests verdict thereon, bearing date respectively, the 11th and 27th July, in the said year, 1724, may more fully appear, and to which the complnt., for greater certainty, craves leave to refer. That an ancient highway extended itself. from the old highway leading from Peeltown to Castletown, at or near the gate, by the deft. Quirks house, through the said common, licensed to the said Maddrell and Quilliam, towards Glen Moij and Dalby, at the time the said license was granted, and the same hath been used and enjoyed by every person and persons, who had occasion to pass and repass thereon, since the granting of the said license, until of late. That the said ancient highways served the complnt. as a road to pass and repass to the said intack, and the complnt., and his heirs and assigns hath and have a right to make use of the said road to and from the same as his and their occasions may require. That the said deft. Quirk, who is entitled to a part of the said licensed premises, through which the said road passeth, hath set or let a part of the same to the other deft. Mylchreest, and the defts., though no way ignorant of the premises, have jointly and severally erected hedges or fences across the said road, and in some places ploughed the same up, and the complnt. is, by means of the said proceedings of the said defts., prevented from enjoying the said intack as well as from receiving any advantage therefrom by setting the same for want of a proper road thereto, and thereby the complnt. is damaged in the sum of Fifty Pounds, sterling, and for the recovery thereof, and to the end that the said obstructions made in the said road may be removed the complnt. brings this suit and prays judgment in the premises according to the due course of the Common Law.
The declaration was filed en the 6th day of Feb. 1786, and on the same day, a Jury of View was sworn and ordered to appear on the premises in the declaration named, on Monday the 17th April next, with all proper parties and persons to view the said premises.
On the 8th May the cause was heard on the merits, and the jury gave the following special verdict :" The complnt. recovers an open road through the defts. lands and premises to the land enclosed by Nicholas Gell, as in the depositions mentioned, and that the complnt. recovers ten shillings damages.
LIB. ScAc., 5th July, 1787.
LACE for Applnt.
Margaret Kee, the applnts. wife, died intestate, and without issue by the applnt.
William Cowley, the husband of Joany Cormode, who was the only child of the said Margaret by a former husband, brought his petition in the Ecclesiastical Court, claiming to be entitled in right of his wife to the one moiety of the goods, cash, and effects, which the applnt. was possessed of at the time of the decease of the said Margaret.
Upon a hearing, the Court made a decretal order in favour of Cowley, and directed the present applnt. to account to him for the one-half of all his personal estate.
From this order the present appeal was brought, and the matter came on to be heard on the 5th July, when the Appellate Court made the following judgment
"5th July, 1787.
" This Court is of opinion the said decretal order ought to be reversed ; and that the said Margaret Kee, the late wife of the applnt., having died intestate, and without issue of their marriage, her right in the cash, goods, chattels, and effects, of the said applnt., and the said Margaret his wife, at the time of her death, thereupon ceased and determined ; and that the same ought to be, and remain, wholly with the applnt., as his sole and absolute property."
" E. SMITH."
LIB. PLI., 8th Feb., 1792.
T. MOORE, D.
The pltff. in this case filed his declaration at law much in the same words as in the case of Cubbin and Sayle post; but the declaration also contains the following charges, (and the prayer for relief is altogether of a different character). " That the said defts., or one of them, hath, or have, enclosed a parcel of commons called Dalby Mountain, Oughvane, Cronk-e-Roie, or Cronken Roie,which contains the best turbaries in that side of the said Isle, and have cut up and burnt the soil thereof, and cut several trenches and drains through the same, in order to convey the water (which is the parent of every turbary) of and from the same, to the entire destruction of the said turbary. And the said defts. have done or committed, or suffered to be done or committed, other damages and injuries to the said turbary, contrary to the Common Law of the said Isle. That by the said laws any person intitled to commonage in and over the said commons, could summon, or cause to be summoned, the Great Inquest of the Sheading together, to inquire into any nuisances complained of in order to get any person who had offended against the Common Law presented for such offence ; and upon which presentment an amercement suitable to the offence was levied by the proper court, so as to prevent such offences from being generally practised, and to preserve a well regulated police in such matters in general. That by an Act of Tynwald, made in the said Isle, in the year 1777, the said Great Inquest, and all proceedings before them were abolished, and it was thereby directed that from thence-forward all matters theretofore cognizable before the said Great Inquest should be tried and determined by and before a jury at Common Law, according to the directions of the said Act of Tynwald. That by means of the said change in the Common Law, and other great defects, or neglects, in the executive part of the police, many offences against the Common Law, and particularly offences against the general law respecting the commons, have passed with impunity, by means whereof the community at large have greatly suffered, and the whole ancient system of police in that respect seems to be at an end, without any regular system being instituted in its stead. The complnt. therefore brings this suit and prays that a jury may be sworn in pursuance of the said Act of 1777, instead of the said Great Inquest, to inquire into the offences committed by the defts. Patrick Sayle and William Sayle, in enclosing and fencing the said turbary from the rest of the commons, cutting up the soil thereof and burning the same, and also by cutting drains in the said turbary, and conveying the water thereof, to the entire destruction of the said turbary, and by other the unlawful proceedings of the said defts. Patrick Sayle and William Sayle ; and to present the said Patrick Sayle and William Sayle for the said offences accordingly, that they may be amerced according to the circumstances of the case, to deter them from pursuing such illegal practices for the future, and that they be ordered to pay the complnt. his costs."
Deft. non compt.
At a Court of Common Law, held on the 9th Oct., 1792.
The following were the names of the jury sworn to try the issue between the said parties
Robert Cowle, Bride, Thomas Corkill, Michael, John Fayle, Braddan, Daniel Christian, Andreas, John Corlett, Ramsey, Robert Kelly, Braddan.
Upon the motion of the parties, " it is hereby ordered that the said jury do appear upon the premises in question, when thereunto required, in order to examine and be better informed of the matters in issue. And that all proper parties and persons whom it may concern, do appear at the said time and place, as they shall answer the contrary."
At a Court of Common Law, holden at Castle Rushen, the 18th day of Feb., 1793,
Which jury, upon their oaths, say " that the defts. have committed trespass, waste, and damage upon the commons as in the declararation mentioned, and the defts. are by the said jury presented to this Court as subject to a fine."
Robert Cowle, his x mark,
Thos. Corkill, his x mark,
The jury delivered their verdict to me.
Thos. MOORE.Castle Rushen, 19th Dec., 1793.
The sum of £3 is imposed as a fine upon the offenders Patrick Sayle and William Sayle severally and respectively.
LIB. PLI., 18th Feb., 1793.
T. MOORE, P.
In this matter the complnt. filed his declaration at law, stating, " that the complnt. is entitled to certain parcels of land in the Treen of Colby, in the parish of Arbory, called Colby aforesaid. That the proprietors of lands within this Isle have a right of commonage without stint in and over all the ancient commons within the said Isle, as well in and to all grass, ling, and heath, growing thereon, as in and to all turbaries in or within the said commons, subject to an annual payment of three-halfpence. That by the Common Law of the said Isle, every person or persons who should be found to have been guilty of injuring the said turbaries by improperly cutting up the same without laying the surface down with the green side up, so that the said turbaries might renew or grow again for the use of the public, or of setting fire to any part of the said ling and heath, was and were subject to a heavy amercement upon presentment of the fact being made by the Great Inquest of the sheading, who were the guardians of the commons within the same, and without whose consent no part of, or even a surplus of, commons within such sheading could be legally enclosed. That there is a certain common in the parish commonly called Dalby Mountain, Oughvane, Cronk-e-Roie or Cronken Roie, which contains the best turbaries on that side of the said Isle, together with a great extent of ling and heath, and pasture land, and to which common the complnt., his heirs, and assigns, proprietors of Colby aforesaid, have a right to resort to cut and carry away turf, and also to pasture their cattle thereon. That the said defts., though no way ignorant of the premises, have lately taken upon them to enclose considerable parts of the said common, with the turbaries therein, and greatly damaged and injured the said turbaries ; and not only prevented the complnt. from having ingress, egress, and regress, into and upon the said turbaries, and other the premises for the purposes aforesaid, to or from what quarter or point may best suit his occasions according to the circtimstances thereof; but the said defts. or one of them, their servants or agents, hath or have chased and driven away the complnts. cattle, &c., off the premises, and prevented them from pasturing thereon. That the complnt. charges that all the said lands enclosed by the said defts., which lie to the southward of the bounds or marks of the lands mentioned in the Great Inquest verdict, allowing a part of the said common called Dalby Mountain to rent, bearing date the 8th day of May, 1752, is an ancient common, and that the complnt. is as well entitled to right of common of pasture, as to a right of common of turbary, ling, and, heath, into and over the same and every part thereof. That by means of the unlawful proceedings of the said defts. the complnt. is damaged in the sum of £50; and the complnt. therefore brings this suit, and prays judgment for the deciding the said enclosed grounds to be a common accordingly, and that the complnt. has a right of commonage of pasture, of turbary, ofheath, and ling, in and over the same and every part there-of; and for the ascertaining the complnts. damage sustained by means of the said defts. illegal proceedings aforesaid, according to the due course of Common Law."
A Jury of View was sworn, and appeared on the premises. The cause was heard on the merits on the 12th day of February, 1792, when the jury delivered the following verdict
" The land in the declaration mentioned is an ancient common, and the pltff. recovers eight shillings damages."
NOTE.There was a third suit at the instance of Thomas Cannell against the same defts. in which the jury found that the lands in dispute were a common, and they gave the pltff. ten shillings damages.
Lib. SCAC., 1794.
Isabella Cannan, the applnts. wife, died without issue by the applnt., who was her second husband. She had children by her first husband, in whose favour she had made her will, viz., the respndts. Mary Corlett and Catherine Corlett. After her decease the children brought their suit as joint executrixes of their mothers will, to recover one-half of the personal estate and purchased lands in the possession of the deceased and her husband at the time of her decease. The Ecclesiastical Court, upon a hearing, made a decretal order itt their favour, from which order the present appeal was brought, upon the alleged grounds " that the applnts. late wife had no right whatever, by will or otherwise, to give or grant unto the respndts. all or any part of the said goods, chattels, rights, credits, purchased lands, and premises, of which the applnt. was possessed or entitled unto at the time of her death ; and, therefore, the respndts. could not, under the said pretended will or otherwise, be entitled to all or any part thereof."
The applnt. and his wife after their marriage entered into an agreement between themselves, that the said Isabella should be at liberty to make a will of her moiety of the property ; nevertheless, the Appellate Court decided, upon a hearing, "That the articles of agreement entered into between the applnt. and his wife were insufficient, in point of legal form, to carry into effect the purposes mentioned therein, or the intention of the parties thereto ;" and the judgment appealed from was reversed.
NOTE.I have a MSS note of this case taken by the late Mr. John Llewellyn, upon which he remarks that " This case is upon the principle of the case of Kee and Cowley but still more in favour of the husband as the wife made a will in favour of her children by a former marriage. The agreement made between the applnt.. and his deceased wife, also formed another material part of the question ; and I believe the Court thought so, as the style of the Court, in the manner usually written in the Common Law-book, is inserted before the decree, as if to give the judgment greater sanction."J. L.
LIB. SCAC., 8th Feb., 1795.
The applnt., in this case, was executor of the will of Elizabeth Christian, and claimed the fruit of an orchard possessed by her up to the time of her death in May.
The Vicar-General, in the court below, decided in favour of the heir against the executor, and from that judgment the present appeal was brought.
The Governor sent a case to the Keys for their opinion. on the Common. Law, and they returned the following answer :
" House of Keys, 19th Nov.,. 1795.
" We have taken into consideration the case this day laid before us by yonr Honour, respecting the right to apples, pears, and such fruit growing in the orchard of an ancestor, and we are clearly of opinion, that upon the decease of such ancestor after the 12th day of May, the executor or administrator of such ancestor is entitled thereto, as well as to the grass."
Upon a hearing the Appellate Court decided in favour of the executer.
LIB. PLI., 2nd Feb., 1797.
. The pltff., in the declaration filed in this cause, claimed " the exclusive benefit of the fishery of salmon and salmon-trout with-in that portion of the sea contiguous to the coast of this Island called the bay of Douglas, for the year or season ending on or about the first day of October instant, under, and by virtue of, a lease thereof from the Acting Receiver-General of this Island. The declaration then charged, that the deft. during the season had, by the assistance of others, drawn a sieve or net in the said bay of Douglas, and did therein, and by means thereof, catch, kill, and destroy salmon and salmon-trout, and refused to deliver them up to the pltff., whereby he charged that he was damaged in the sum of £10."
The cause came on to be heard on the 7th February, 1797, and the jury found " That the deft. had no right to kill salmon in Douglas bay, and that the pltff. recover twenty shillings damages."
LIB. CAN., 7th Nov., 1793.
Widow of William Cubbon. In this matter a bill was filed in the Court of Chancery, charging " that the complnt. was the heir-at-law of.the said William Cubbon, deceased, who, in his lifetime, by judgment of the Lord Bishop of the diocese, had been duly divorced from his said wife on account of her repeated incontinence during her intermarriage. That alimony had been allowed to her under the said judgment ; and afterwards the deceased entered into an agreement with the said Margaret Cubbon to pay her an increased sum per annum, to which the deft. was then, and would for life, continue to be entitled to." The bill then charged " that the said William Cubbon was dead, and that the deft., by reason of her adultery, had forfeited her dower in her late husbands estate."
7th Nov., 1793.
The Court, upon a hearing, made the following judgment :" It appears.to this Court that the merits of this cause principally depend upon a question of law ; whether the deft. Margaret Cubbon, by the Common Law of this land, doth, or doth not, forfeit her dower, in the premises in the pleadings mentioned, by reason of her incontinence during her intermarriage with the said William Cubbon, and for which incontinence a separation from bed and board had taken place in the Ecclesiastical Court in her said husbands lifetime ? It is, therefore, hereby ordered that an issue at law do proceed in the Court of Common Law, at the instance of the complnt., without unnecessary delay ; and that the jury to be empannelled and sworn to try the said issue do, after hearing and considering the evidence exhibited at the said court, for and on behalf of each party, return their verdict, and therein particularly specify whether the deft., by the Common Law of this Isle, hath forfeited her right or title of dower, of and in the premises aforesaid, by reason of the incontinence aforesaid. And that the said verdict be forthwith transmitted to this Court, that the Court may proceed to a final determination, and decree upon the merits of this cause."
LIB PLI., 1794.
An action being brought by direction of the Court of Chancery to try whether the deft. was entitled to dower in the estate of Kewaige, the jury, upon a hearing, declared-
" That Margaret Cubbon had not forfeited her right of dower in the estate of inheritance of her husband."
From this verdict a traverse was entered to " the Keys," but upon a hearing, that Court affirmed the verdict.