[from Advocate's Notebook, 1847]
20th Oct., 1823.
GENESTE for Pltff. ; LLEWELLYN for Deft.
Prior to passing the Act of 1820, pltif. obtained an execution against deft. for £, with interest until paid, and he now brought this suit to try the question, whether the interest becoming due from time to time on the former judgment, did not constitute a fresh cause of action, and bring the deft. within the meaning of the Act of 1820, which subjected a party to imprisonment in default of payment of any just debt ; and it was contended, for the pltff., that, so long as the interest was paid, there was no cause of action, but when it became in arrear, then the cause of action arose.
LLEWELLYN, contra.The execution having been obtained prior to the year 1820, for principal and interest, it stands to reason that the interest accruing cannot be separated from the original debt, but must be considered a mere continuation of the same transaction ; and the deft., therefore, cannot be affected by an act which was not made when execution was granted against him.
The pltff. in this cause, having failed in his former attempt to have the deft. imprisoned for the arrears of interest due on the execution granted against him before the year 1820, now brought a petition to obtain a fresh execution against the deft. for the interest which had become due since the year 1820.
GELLING, for deft.The present application is altogether unnecessary, since the pltif. has already an execution for the same thing he seeks by this suit. The execution which the pltff. holds is for the principal and interest till paid, and as there could have been no plea on the part of the pltif. for setting it aside if this Act had not been passed, so neither could it be done now, for it was as valid as ever. The interest could not be separated from the principal, because the execution he already holds is for both, and besides, if the pltff. succeeds in this suit, it would give him the very thing he failed to obtain in the first suit, since he would have it in his power to imprison the deft on an execution obtainednow, though he could not do it on the one obtained before the act was passed, and hence it would be great injustice to deft. to cause the new act to have a retrospective effect, and place the plitff. in a better situation than he stood in when he obtained his judgment against the deft.
GENESTE, for pltff.Each years interest, as it becomes due, if not paid, forms a new cause of action. The new cause of action does not arise till the deft. is in our debt, and from that time only can he be sued for it. That time is the present, and we have a right to the relief afforded by the act now in force.
Deemster CHRISTIAN took time to consider the matter, and on Monday, the 10th, extended the following judgment on the petition : ...
"After taking time to consider what has been alleged, it appears to, this Court that the words annexed to the former judgment, with interest until paid, carry with them no legal force, and are mere surplusage, and that no judgment can be given for any interest beyond the day on which the same is signed, and that consequently the interest accruing since the 1st Nov., 1820, is to be taken as a fresh cause of action since the passing of the said act. Execution is, therefore, awarded.
27th Oct., 1823.
QUIRK, jun., for Pltff. ; Quirk, H.B., and GELLING for Deft.
This suit was brought to obtain an order to imprison the (left. according to the terms of the Act of 1820, " for the better enforcing common judgments and executions."
The pltff., during the time he was Coroner, in 1819, held executions against deft., in favour of a third party. Under these executions he took pawn, and appraised goods which he supposed to belong to tleft., but which were afterwards claimed by Mrs. Moore. the defts. mother-in-law, and given up to her. Pltff. not being able to find any other property, gave a return of nulia lona. Subsequently,the person in whose favour the executions were granted, discovered that the deft had other property at the time the pltff, gave him the said return, but which property had been since made away with. He therefore had Curphey imprisoned for his neglect, and he remained in prison until he had paid the whole amount of the executions. The debt then became transferred to Curphey personally, and, in settling withthe deft., some disputes arose, which, by an order of Court, were referred to arbitration, and an award was made in favour of pltff. in the year 1821 or 1822. It was for the amount of this award (for which an execution had been obtained, and a return of nulla bonn made) that the pltff. now sought to have the deft. imprisoned.
For pltff., it was contended, that the award having been made subsequent to the Act of 1820, must be considered a new cause of action, and came within the meaning of that clause of the act which enacted, " for any cause of action which shall or may arise after the promulgation of this act, it shall be lawful for the Court, on hearing of parties, to order the deft. to be imprisoned, unless he can shew good cause to the contrary."
For deft.The debt now sought to be recovered was contracted long prior to the Statute of 1820, and an execution was already obtained for it under the law as it then stood. The award was made under an order of Court, and varied the old debt, but did not create a new one ; it was, therefore, only a continuation of the original proceedings, and the pltff. must persevere in the mode of redress he had first sought, as it could not be considered a new cause of action.
Deemster CHRISTIAN.I am at present of opinion, that though the debt was prior to 1820, yet the award, having been made subsequent to 1820, may be considered a new cause of action, but I shall take time to consider the point.
The DEEMSTER extended the following judgment on the petition :
"It appears that an execution, with interest and costs to be taxed was put into Curpheys hands to enforce against Moore. Pawn was taken, and goods appraised, which goods were afterwards claimed by, and delivered to, Mrs. Moore, his mother-in-law, and no other goods being found, a return of nulla bona was made. But it having been discovered that there had been property of Moores at the time Mrs. Moores goods were taken, which property being oats, hay, &c., had since been consumed, and could not then be found, the person in whose favour the execution against Moore had been obtained, imprisoned Curphey for neglect, and Curphey obtained his release in 1821 on payment of the money. The money then became due to Curphey. The disputes between him and Moore were submitted to arbitration, and an award was made in Curpheys favour, which, in my opinion, constituted a new cause of action. Ordered, there-fore ,that the deft. be imprisoned until he pays the said debt and costs, or until he be discharged by due course of law.
From this judgment the deft. appealed, and the appeal was heard before the Staff of Covernment on the 13th July, 1824.
GELLING, for the applnt., contended, that though the award was made in Curpheys favour in 1823, yet the debt on which that award wasmade was incurred in 1817, and the executions were put into Curpheys hands long prior to the Statute of 1820. When the executions were put into Curpheys hands at first, he had not the power to imprison the applnt. If he neglected his duty till a new act was passed giving increased power in matters which might arise after the passing of it, surely he could not apply that act to matters put into his hands before it was made.
ROPER, for respndt.It is true the executions are dated before the act of 1820, but the debt did not become Curpheys until he had discharged those executions, which was after 1820. The simple question then is, when did the cause of action arise ? It arises the moment a man can bring his action, and not before. The respndt. could not bring an action against the applnt. until he had himself paid the execution, which was not until 1821, and, consequently, his " cause of action" arose after 1820.
Deemster HEYWOOD.The very instant the executions were put into the Coroners hands, he had a cause of action against the applnt., and if he neglected his duty, he must suffer for that neglect.
By the decree of the Court the judgment was traversed.
3rd Nov., 1822.
GELLING for Pltff.; GENESTE for Deft.
The deft. had agreed to carry out the newspapers of the Rising Sun Printing-office for five shillings in winter, and four shillings in summer, per week, which agreement was made at his own earnest solicitation repeatedly made, and upon the express stipulation that he was to stay a twelvemonth in the employ of the establishment.
The agreement was proved by three witnesses. The deft. having left the service upon the plea that his wages were too small, the present suit was brought to compel him to return to the service, and complete the term for which he was engaged. The deft. denied the agreement, but called no witnesses.
Deemster CHRISTIAN ordered the deft. to be imprisoned in Castle Rushen until he entered into bonds to return to the office, and fulfil his engagement.
3rd Nov., 1823.
ROPER for Pltffl ; GENESTE for Defts.
This suit was brought to have an award set aside, upon the plea, that it had been illegally made, the pltffs. accounts not having been fairly before the arbitrators.
Deft.An award having been once made, cannot be set aside, except by application by bill to the Court of Chancery.
Pltff. examined one of the arbitrators, who confessed there were some items in the accounts which had escaped their attention, and required further consideration.
The Court, therefore, referred the matters back to the arbitrators, this being a clear matter of mistake.
QUERYThe power of a Court of Law to remand even in case of mistake.
4th Nov., 1823.
ROPER for Pltff. ; KELLY, for Deft.
The pltff. had placed an execution in the defts. hands (who was then a Coroner) against one Moore for £. The time had long gone by in which the Coroner should have made his return, and he had neglected to proceed against the goods of Moore ; pitif., therefore, brought this suit against the deft. to compel him to pay the full amount of the execution which he had neglected to levy.
The deft. admitted the facts, but contended, that he was discharged from his liability by the conduct of the pitif., who, after he had placed the execution in the defts. hands, in his capacity of Coroner, had interfered with him in the execution of his duty, receiving from Moore a sum of money in part payment, and, therefore, deft. considered he had no right to proceed against Moore for a debt not now actually due, part of it having been already paid to pltff., and the execution so far broken.
Deemster CHRI5TIAN.I am of opinion that pitif., having interfered by receiving part payment of the execution, independent of the Coroner, has destroyed his claim upon him, and cannot now recover under this suit. The Coroner must, however, proceed under the same execution to recover the balance still due upon it.
24th Nov., 1823.
GENESTE for Deft.
Deft. pleaded that he had not been duly summoned, and was unprepared to defend a suit, as when the Coroner came to him for the purpose he could not tell him the pitifs. name, at whose suit he was summoned, it being illegibly written in the warrant.
Pltff.The right person having been charged, and now appearing, the cause ought to be heard.
Deemster CHRISTIAN thought otherwise, and dismissed the cause, pitif. not being able to produce a certificate, stating at whose suit the deft. had been summoned, as the officer could not read the name. Without knowing at whose suit he was brought into court, it was, of course, impossible for deft. to come prepared with his defence.
1st Dec., 1823.
LLEWELLYN for Pltff. ; GELLING for Deft.
The pltff., as heir-at-law of William Cosnahan, deceased, brought this suit to obtain an order of possession of half the lands belonging to pltffs. late father, and now in possession of his mother.
GELLING, for deft.The parents of the pltff., in consideration of his giving them his promissory note for £40 Manx, had executed a deed settling the whole property upon the survivor of the parents, and, at their death, on the pltff. The pltff, fancying himself a lawyer, thought he could evade the intention of the deed by not signing it. In this he deceived himself, for by signing the promissory note for the valuable consideration, viz., £40, as expressed in his note, he had enabled the deft. to produce that note as a clear proof of his perfect acquiescence in the deed, though he had contrived to avoid signing it.
LLEWELLYN, for pitif., contended, that the entire affair was a mere trick to preserve the whole of the property for the mother during her life. It was an attempt to give the deft. a right which the law refused her. This the pltff. well knew, and so far humoured the trick as to sign the promissory note, though he prudently evaded executing the deed.
Deemster CHRISTIAN.Is it necessary for the son to have signed this deed?
LLEWELLYN.Certainly ; by the law of the Island the parents cannot sign away an estate of inheritance in the way proposed, without the consent of the heir, and in this case the pltffs. signature not having been put to the deed, it is altogether void, and only so much waste paper.
Deemster CHRISTIAN some days afterwards pronounced this judgment :" I am clearly of opinion that the deed of settlement made by William Cosnahan and Jane his wife, bearing date 24th May, 1819, whereby the estate of inheritance of the said William Cosnahan, and also all his intack lands, were, after the decease of the longest liver of the grantors, settled upon the pltif. in consideration of £40 Manx, to be paid as therein stated, and which sum was secured by the pltffs. note of hand of the same date, is a good and valid conveyance, and ought to be supported in law. I do, therefore, dismiss this cause with costs."
HOUSE OF KEYS, 7th Dec., 1823.
ROPER and KELLY for Pltff. ; GELLING for Deft.
This was an appeal from a suit at Common Law to recover the amount of an account for work and labour done by the pltff. for the deft. A nonsuit had been moved for in the court below, on the ground of clerical errors in the declaration. The word "pltff." stood in one place for " deft.," and in another, " which the pltif. was then building," ought to have been, which the deft. was then building." The Deemster, in the court below, refused to nonsuit the parties, but referred the matter to the jury, charging them to return a special verdict, and stating that the words were mere surplusage, and did not affect the issue. The jury accordingly gave a special verdict, dismissing the cause, each party paying his own costs, if the objection was good ; but finding a verdict of £20 for the pltff. if the mistakes in the declaration were adjudged to be of no consequence.
Taubman, on this verdict, presented a petition to the Lieut.Governor, as President of the Court of Common Law, and the matter coming on to be heard, the Court refused to disturb the verdict.
Fitzimmons then appealed from the verdict of the jury to the House of Keys ; and, notwithstanding the decision of the Governor, he endeavoured to urge the same objection before the Keys.
The Court, however, heard the cause upon the merits, and dismissed the appeal with costs.
1st Dec., 1823
QUIRK, Jun., for Pltff. ; GENESTE, for Deft.
Several executions against one Kerr having been placed in the pltffs. hands, who was Coroner of Glenfaba, he took pawn of Kerrs goods, and appraised, amongst other things, some oil cloths. Pawn being taken, the goods were left in Kerrs house. Kerr sent the oil cloths, which had been appraised, to the deft., to be repainted, which coming to the knowledge of the pitif., (but.not till Dixon had painted them), he brought this suit to compel the deft. to give them up.
Deft. pleaded ignorance of the goods having been appraised. They came to him, in the way of his trade, to be painted ; he had painted them, and he conceived he had a right to detain them till his bill for painting them was discharged, which Kerr's creditors could not object to, as they were much better for the new painting. The Court conceived that deft. had a lien on the cloths ; but ordered them to be given up to pltif., and pltif. to pay Dixon, from the proceeds of the sale, the amount of his demand for painting the said cloths, in preference to any other creditor.
15th Dec., 1823.
KELLY for Pltff. ; ROPER for Deft.
This was a petition brought by the pltff. for the purpose of laying a complaint, and taking a reference to Common Law, in a case of defamatory language.
It being necessary to state the words used and complained of within fifteen days from the speaking of them, in order to comply with the terms of the Statute of 1738, the pltff. moved for the usual reference as a matter of course.
ROPER contended, for deft., that the pitif. should examine witnesses and prove his case before the Deemster would be justified in granting a reference to Common Law, and the present petition was altogether unnecessary as proceedings were already instituted against the deft. in the Chancery Court.
KELLY, for pltff.The suit in Chancery is merely to hold the deft. to bail. Under the present petition, it is not at all necessary to examine witnesses to prove the slander. All that the act requires is that the information shall be laid before a magistrate within a limited time, and the reference to law follows as a matter of course. He did not, however, object to examine a witness, as he could easily prove a sufficient case.
A witness was then sworn, and proved the words complained of. Deemster CHRISTIAN.I have in this particular case permitted a witness to be examined, but it must be no precedent for the future, as I conceive the law does not require it. Take a reference to law in the usual form.
QUERYWas not this action to hold to bail a sufficient laying of the complaint within the meaning of the Statute, and more especially as there was an affidavit to the action, and no particular form of laying the complaint is prescribed by the Statute ? It has, however, long been the practice to do it by petition in open court, and with notice to deft.
LAB. CAN., 1.5th June, 1824.
QUIRK, H.B., and ROPER for Pltff. ; LLEWELLYN and KELLY for Deft.
on the 15th June, 1821, his Grace the Duke of Athol filed his bill in Chancery against the deft., setting forth, " that by an Act of Tynwald, promulgated in the said Isle of Man, in the year of our Lord, 1704, entitled, An Act for the Perfect Settling and Confirmation of the Estates, Tenures, Fines, Rents, Suits, and Services, of the Tenants of the Right Hon. James Earl of Derby, within the said Isle ; there is reserved to the said James Earl of Derby (who was an ancestor of the applnt.), his heirs and assigns, and to all and every other person or persons that shall at any time hereafter become lords of the said Isle, all such royalties, regalia, prerogatives, homages, fealties, escheats, forfeitures, seizures, mines and minerals of what kind and nature soever, quarries, and delfs of flagg, slate, and stone, as now are, or at any time hertofore have been, invested in the said James Earl of Derby, or in any of his ancestors, lords of the said Isle. That by a further Act of Tynwald, passed in the aforesaid year, 1704, it is enacted, That every tenant and farmer shall, nevertheless, have free liberty of digging, raising, or disposing of, all sorts of stone or slates upon their respective tenements, as has been formerly accustomed, so that they be employed only for their own use, and for the improvement of their own and neighbours estates and tenements, and that they shall not dispose or make merchandjze of the same otherwise, without the license or liberty of the Lord or Governor of the said Isle first had and obtained for the same. That by an Act of Parliament made in the 5th year of the reign of his late Majesty King George III., the applnts. exclusive right in and to all mines, minerals, and quarries, is expressly reserved and recognized ; and that the applnt. in respect of his right as Lord of the said Isle, and by virtue of the before in part recited acts, was well entitled to all quarries and delfs of flagg, slate, and stone, within the said Isle ; and also setting forth and complaining, that the said Thomas Jefferson, the now respndt., had, by himself, his agents, and servants, by him, the said respndt., employed at or near Stockfield, in the parish of Malew, in the said Isle, and without the liberty or license of applnt., and contrary to his desire and directions, entered into certain extensive quarries of limestone, and raised and dug up considerable quantities of the same ; and, after burning such limestone into lime, had sold, disposed, and made sale and merchandize thereof, and also had made merchandize of the same, by water conveyance in vessels, to distant parts of the Island, such lime being the produce of the said quarries. And that the said respndt. continued so to do in defiance of the applnts. right as aforesaid, and contrary to law. And praying that the respndt., the then deft., might answer the premises, and that a perpetual injunction might be granted to inhibit and restrain the said respndt., the then deft., from digging and raising limestone, and making sale, and disposing and making merchandize thereof, and burning the same into lime for the purpose of making sale, by making merchandize of the same, and for relief."
"That the said respndt., in the month of August, 1825, filed his answer to the said bill, and thereby admitted it to be true, as stated in the appints bill, that the applnt. was entitled to certain rights and privileges reserved by an Act of Tynwald, promulgated in the said Isle in the year 1704, and which were also mentioned in another Act of Tynwald, promulgated in the said Island in the said year, 1704, relating to, and explanatory of, the said former Act of Tynwald, but which explanatory act, the respndt. submitted, did not give to the applnt. an exclusive right in and to quarries of slate and stone; but, amongst other things, was enacted for the purpose of defining and enlarging the rights of the inhabitants of the said Isle in and to such quarries of slate and stone, and which act permitted every tenant and farmer to have free liberty of digging, raising, and disposing of all sort of stone and slates upon their respective tenements, and as has been formerly accustomed, so that they only be employed for their own use, and for the improvement of their own and neighbours estates and tenements, and that they should not dispose or make merchandize of the same otherwise, without the license or liberty of the Lord or Governor of the said Island first had or obtained for the same, and the respndt. denied having entered into certain quarries near Slockfield, without the license or liberty of the appint., and contrary to his desire and directions, and raised and dug up considerable quarries of limestones, and converted the same into lime, inasmuch as at the time respndt. entered into the said quarries, which was then seventeen years ago, it was never intimated to him, nor did he in any way understand, that a license from the appint. was requisite to enable any person to burn lime for the use of the said Island ; nor was he, or any other person or persons, to the respndts. knowledge, ever interdicted or prohibited from so doing, until a few years ago, when the appint. commenced legal proceedings against respndt. who, prior to that time, exported and made merchandize oflime, and which proceedings ceased upon the respndts. agreeing to pay the applnt. a sum of £21, as a lordship, for one year, to enable him so to export and make merchandize; and upon the respndt. refusing to pay a considerably greater premium for such permission or license, that the applnt. filed his bill in the said cause."
Evidence was gone into on both sides, and the cause came on to be heard on the merits, when the Court made the following decree :
" 3rd Aug., 1826.
" This Court is of opinion that the deft. had not made merchandize of limestone contrary to the true meaning and import of the Act of Tynwald, passed in the year of our Lord 1704, and that this Court ought not to grant an injunction to restrain the deft. from digging, and raising, and disposing of limestone for his own use and for the improvement of his own and neighbours estates and tenements, as provided in and by the said act ; and as the same has been enjoyed by the inhabitants of the said Isle from the passing of the said act until the complnt. instituted a suit against the deft. to restrain him from so doing, and that, therefore, the bill ought to be dismissed, and the same is hereby so ordered and decreed accordingly"
From this judgment the complnt. appealed to his Majesty in Council, and the matter of appeal not being defended, it came on to be heard before the Privy Council, and the following judgment was made :
" At the Court of St. James, the 13th May, 1829.
" The Lords of the Committee, in obedience to your Majestys said order of reference, this day, took the said petition and appeal into consideration, and having heard counsel for the applnt. thereupon, none appearing for the respndt., their lordships do agree humbly to report as their opinion to your Majesty, that the decree of the Court of Chancery of the Isle of Man of the 3rd of August, 1826, should be reversed, and that the respndt. should be decreed to be restrained by perpetual injunction from digging and raising limestone, and making sale and disposing, and making merchandize thereof, and burning the same into lime for the purpose of making sale, disposing, or making merchandize thereof, otherwise than for his own use, and for the improvement of his own estates and tenements, and the estates and tenements of his neighbours contiguous to his own estates, without the license of the applnt., his heirs, or assigns."
His Majesty, having taken the said report into consideration, was pleased by and with the advice of this his Privy Council, to approve of what is therein proposed, and to order, as it is hereby ordered, that the same be duly and punctually complied with and carried into execution, whereof the Governor and Lieut.Governor and Commander-in-Chief of the Isle of Man, for the time being, and all other persons whom it may concern, are to take notice, and govern themselves accordingly."
( Signed) JOSEPH BULLER.