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[from Advocate's Notebook, 1847]
LIB. PLI., 1825.
This was an appeal from a judgment of the House of Keys. The pltff, had filed her declaration at law, claiming one-half of certain quarterland property called the Doctor’s Field, as heiress-at-law of Dominique Lamothe, upon the ground, " that the property in question was devised by Susannah Lamothe to her husband, by will, and afterwards devised by him to the deft., now the applnt. in this case, and she claimed upon the ground that lands once taken under a will cannot again be disposed of but by deed."
On the 11th of October, 1825, the jury dismissed the cause with costs, but, upon appeal, the House of Keys reversed the verdict, and gave judgment in favour of the pltff. without costs.
From this judgment an appeal was brought to the Privy Council, and, upon a final hearing, on the 28th of June, 1830, their Lordships confirmed the verdict of the House of Keys, and the judgment was extended in the following terms :—
'Upon this appeal no appearance was made for the respndt. and on the 14th July, 1827, the applnt. obtained an order for the said appeal to be heard on the 10th of September following, with notice to the respndt. The respndt. did not appear on the said 10th of September, and, upon motion of the applnt., the Lords of the Committee made an order on the 30th January, 1828, peremptorily ordering the respndt. to enter her appearance to the said appeal within six weeks from that date, otherwise that their lord. ships would proceed to hear the said appeal ex parte.’ That the respndt. did not appear in pursuance of the said order, and upon affidavit of service on the 28th of March, 1828, the said cause was set down to be heard ex parte. That a compromise was then proposed and agreed to, whereby it was settled that the applnt. should pay £50 to the respndt., and respndt. should relinquish all claim to the lands in dispute. That the solicitor undertaking the appeal in London was then instructed to take steps to withdraw it ; and, upon petition of the applnt., on the 6th of June, 1828, reciting the facts aforesaid, the applnt. was allowed, by their Lordships’ order, to withdraw the said appeal, and the recognizances entered into for prosecuting the said appeal were declared discharged. Subsequently the respndt. refused to ratify the agreement, and insisted upon enforcing the judgment ; whereupon the applnt. petitioned the Lords of the Privy Council to be allowed to reinstate the appeal, the petitioner offering to enter into fresh recognizances, and to give notice to the respndt. ; and, upon a hearing ex parte, the applnt. was allowed to prosecute his appeal, notwithstanding the order of Council of the 11th of June, 1828, upon entering into recognizances in the Isle of Man of the same nature and to the same effect as the recognizances discharged by the last mentioned order in Council, and also giving notice to the said Rebecca Lamothe."
On the 4th of September, recognizances were entered into in the Isle of Man in terms of the said order in Council, and upon the appeal being finally heard on the 28th of June, 1830, the following judgment was made :— " Ordered that the order of the House of Keys of the Isle of Man of the 7th of December, 1826, be, and the same. is hereby, affirmed, with £69 4s. 8d. sterling, costs, whereof the Governor, Lieut. -Governor, or 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.
"JOSEPH BULLER."
See this case fully reported, Knapp, 271.
The firm of Beatson and Copeland, bankers, in the Isle of Man, after the death of Beatson, stopped payment, whereupon Anthony Dunlop and William Banks were appointed trustees, Robert Harrison, treasurer, Messrs. Holmes, the bankers, and Charles Geneste the law agent for the trust estate.
The respndt. proved a claim against the estate for £2,878 19s. 9d., and the applnt., under assignment from other creditors, became a claimant to the amount of £780. These were the largest creditors. After personal interviews in the Isle of Man, a correspondence was kept up between them concerning the trust estate from 1815 to 1825.
In 1817, a dividend of five shillings in the pound was paid to the joint creditors of Beatson and Copeland, and ten shillings in the pound to the separate creditors of Copeland alone.
In 1823, the applnt. advised the respndt. to sell his debt to some one, some legal proceedings having taken place about that time, which ended in disappointment to the creditors.
In 1825, a correspondence ensued between the parties relative to the sale of the respndt’s. claim to the applnt., and, on the 1st of April, 1825, the respndt. wrote to say, that if the applnt. would send him his note, payable in three months with interest, for £90, he would assign over his debt to him, sign any proper instrument he might require, and assist him by every means to receive the dividend.
On the 9th of April, the applnt. wrote to accept this offer, and enclosed his note for the £90, with a deed of assignment of the respndt’s. claim to any dividend the estate might thereafter pay, and a power of attorney, in the usual form, to receive the amount.
On the 19th of April, these were acknowledged by the respndt., and the deed of assignment returned duly executed by him.
On the 7th of April, applnt. was noticed, as a creditor, under a petition by Dunlop, praying the Court to order a final distribution to be made of the trust estate.
The petition was heard on the 11th, and the Court decreed, " that the accounts should be lodged in the Rolls’ Office for the benefit of all parties." No further hearing took place until the 1st of December, when a distribution was ordered.
In June 9 1825, the respndt. filed a bill in Chancery against the applnt., praying to set aside the agreement, upon the ground that on the part of the applnt there had been both suggestio falsi and suppressio veri in the communications which he had made to the respndt.
The ground on which the respndt. rested his case was fraud, alleged to have been practised by the applnt. ; and the points relied on to support this charge of fraud were, lst.—That the applnt. in his letter of the 17th March, 1825, falsely suggested that the estate would only pay another dividend of 6d. in the pound, he knowing in fact that there were funds in hand sufficient to make a dividend of 1s. 6d. in the pound, or upwards. 2nd.—That the applnt. in the same letter falsely suggested a conversation with Mr. Harrison, to the effect that there were no funds in his hands, no such conversation having, in fact, taken place ; and the said Mr. Harrison having then between £800 and £900 in the hands of Messrs. Holmes and Co., to his credit as treasurer, such conversation being fraudulently stated in order to deceive the respndt., and to obtain an assignment of his debt at an undervalue. And, 3rd.— That Mr. Dunlop, the surviving trustee, on the 1st April, 1825, presented a petition to the Court of Chancery of Man, stating, that he was desirous to make a final distribution of the trust estate, and praying that the Court would order such final distribution to be made within a limited time ; and that such creditors as should not bring forward their claims within such limited time, might be barred of any dividend from the said estate. That such petition was ordered to come on to be heard on the 7th of April, aforesaid, and the applnt. received no notice to attend ; that it was heard on the 11th April, when it was clearly declared and understood that a dividend was likely to take place in a very short time, and the accounts were ordered to be delivered into the Rolls’ Office, and that the applnt. fraudulently suppressed all these facts from the knowledge of the respndt.
For the defence, it was denied that any falsehood was suggested by the applnt., and that, in truth and fact, the correspondence already shewed that the respndt. was better informed of the facts than the applnt. , and was able to correct certain mistakes into which the deft. had fallen. And that as to the suppression of the truth, there was nothing withheld until the pltff. ceased to have any interest in the estate, as the dates would shew. On the 25th of Feb. the respndt. offered to take £100 for his debt. On the 4th of March the applnt offered him £80, or to sell his own claim for the same sum. On the 12th of March the respndt. declined this proposal, and on the 1st of April the respndt. offered his debt for £90, and to execute any legal assignment of it ; and it was, therefore, argued for the deft. that the respndt’s. interest was concluded from that date, and that in the subsequent transactions he had no longer any interest.
5th Oct., 1826.
Upon a hearing, on this date, the Court of Chancery declared that the said promissory note and assignment ought severally to be cancelled and set aside, and the same was so ordered and decreed accordingly, with costs to be taxed.
From this decree the deft. appealed to his Majesty in Council, and on the 30th of May, 1828, the Privy Council affirmed the judgment of the court below, and dismissed the appeal with £76 9s. 8d. costs.
On the 28th of February, 1828, Mr. John Burrow, the applnt., who is a resident merchant in the Isle of Man, imported into that Island, on board the British ship Eleanor, from Bourdeaux, 500 casks of a very strong spirit, which was described, in the report of the vessel, as alcohol of wine. Mr. Burrow afterwards entered the whole quantity as spirits of wine, and paid duty upon it accordingly, at the rate of £15 for every £100 of the value.
In consequence of information that this large quantity of spirits of wine had been imported for the purpose of being sold and disposed of as brandy, the Comptroller of the Customs in the Isle of Man, on the 16th of April following, made seizure, in the warehouse of Mr. Burrow, of 131 casks, containing 6,166 gallons of foreign spirits, being part of the .500 casks imported on the 28th of the month of February preceding.
On the 29th of January, 1829, an information containing ten Counts, was filed in the name of James Quirk, Esq., the respndt., against the goods seized : the first count describes the goods seized to be 131 casks, containing 6,166 gallons of foreign brandy, and states the cause of seizure to be the importation thereof without license.
The second count describes the goods seized to be foreign brandy, and states the cause of seizure to be the importation thereof in casks containing less than 100 gallons. These two Counts are framed upon 6th George IV., c. 1 15, s. 4 and 12.
The third and fourth Counts are framed upon the same act, s. 13, and state the cause of seizure to be that the spirits were over-proof.
The fifth, sixth, seventh, and eighth counts are framed upon the 6th George IV., c. 107, s. 2, by which section it is required, that all goods should be duly reported, upon pain of forfeiture ; and the fifth and sixth counts expressly describe the article seized as brandy.
The seventh and eighth Counts describe the goods seized, as spirits, as having been unladen, and as not having been duly reported.
The ninth and tenth counts are framed upon the same act, (6th George iv., c. 107.) s. 2 and 18.
In the ninth count the cause of seizure stated is, that the article seized being brandy, was entered as alcohol or spirits of wine ; and in the tenth count, that it is entered as spirits, and not being properly described as alcohol or spirits of wine.
On the 25th of February, 1829, the applnt. entered his claim to the goods seized, in the usual form, and alleging that the spirits so seized was not brandy, but spirits of wine.
He also put in a plea to the information traversing the several counts therein.
Commissions were issued to take evidence in Bourdeaux, Liverpool, and London, and on the day of trial in the Island, witnesses were examined at the bar of the Court.
The Cause was heard before the Lieutenant Governor and Judge of the Court of Exchequer of the Isle of Man, and in the presence of John Christian and John Joseph Heywood, Esqs., Deemsters of the said Isle, and Assessors of the said court, when two questions were raised for the determination of the Court, viz., whether the spirits imported were spirits of greater strength than that of one to nine over hydrometer proof, and as such prohibited to be imported? and whether the said spirits were or were not brandy
Upon the hearing the Court declared its opinion, " that the spirits in question were illegally imported into the Isle of Man, and that the seizure was good, they being legally forfeited."
Before this judgment was extended upon record, the applnt. presented a petition to the Governor, praying " that the whole of the case set forth in the information might be gone into and fully heard previously to the judgment being extended upon that part of the case which had been already heard, in order that in the event of the judgment upon that part being set aside on appeal to the King in Council, lie might not be subject to the hardship and expence and delay of justice which he roust sustain if liable to be again brought before that Court upon the other counts in the information, and then compelled to carry those Parts of the case also before the King in Council by appeal, instead of being allowed to have the whole case adjudicated at once and included in one proceeding."
The petition came on for hearing on Friday, the 5th day of August, 1831, and after counsel on both sides had been heard, the Court were of opinion, "That unless the Crown would give up the other counts of the information, and rest the case upon the count under which the judgment was given on the preceding Tuesday, the whole of the case should be laid before the Court, in order that the whole might be brought at once before the Appellate Jurisdiction."
On the 6th of October, 1831, the cause was reheard, when the Court made the following judgment :—
24th Oct., 1831.
" This Court is of opinion that all and. singular the said spirits, goods, and merchandize in the said information mentioned, and in and by the said indenture appraised to the sum of £2.158 2s. were imported into this Island, contrary to the true intent and meaning of the 13th section of an Act of Parliament passed in the sixth year of the reign of his late Majesty George IV.. entituled, ‘ An Act for regulating the Trade of the Isle of Man,’ and the same are hereby declared, anti adjudged to be and re main forfeited and condemned ; and it is further ordered, that the said goods be disposed of according to the Act of Parliament in that case made and provided."
From this decree of the Court the deft. appealed, and assuming that by the judgment, the question whether the spirit seized was brandy or not, was virtually decided in his favour, he urged that the judgment ought to be reversed for the following reasons :— " Because at the time when the spirits in question were imported by the applnt., the prohibition contained in the Statute 6th George Iv., c. 107, s. 52, against the importation into the United Kingdom of spirits of greater strength than one to nine over hydrometer proof (except spirits the produce of the British possessions or of the Cape of Good Hope), had been repealed by the Statute 7th George Iv., C. 48, s. 6, and, Consequently, had ceased to be of any force or validity in the Isle of Man under the Statute 6th George IV., c. 1 1 5, s. 1 3, having only been in force there originally by virtue of its being in force in the United Kingdom.
"HENRY J. STEPHEN,
" WILLIAM SMYTHE."
Whereas the respndt. submitted that the judgment of the court below, so far as the same had been pronounced upon the points at issue between the parties, ought to be affirmed with costs, for the following amongst other reasons
" Because the goods seized were shewn to be spirits of a greater strength than that of one to nine over hydrometer proof, and as such are prohibited to be imported into the Isle of Man."
The respndt. will also humbly submit that he was entitled to a judgment for the Crown upon all the other counts of the information for the following amongst other reasons :.—.
" Because the goods imported were in fact brandy of a greater or higher degree of strength than that of one to nine over hydrometer proof, and were imported without license, and were not duly reported or duly entered.
"HERBERT JENNER,
"THOMAS DENMAN,
" WILLIAM HORNE."
The cause came on to be heard, and the following decree was made :— 6th March, 1883.
" It is hereby ordered that the judgment and order of the Court of Exchequer of the Isle of Man of the 24th of October, 1 831, be, and the same is hereby, reversed. And it is hereby further ordered that the spirits, goods, and merchandize, by the said judgment condemned, be restored to the said John Burrow.
"C. GREVILLE."
See this case fully reported in Knapp’s Reports, where the following short minute of the case is given:— " Where a statute for regulating the trade of the Isle of Man prohibited all goods prohibited in the United Kingdom, the prohibition was held to vary from time to time with the prohibitions in the United Kingdom ; and the repeal of a prohibition of any particular goods, as to the United Kingdom, is a repeal of the prohibitions as to the Isle of Man, although not named in the Repealing Act."
Up to, and at the beginning of, the year 1817, Edward Cotteen carried on business extensively under the firm of Callow and Co.; against which firm George Quayle and Co., on the 1st of February, 1817, obtained an execution in the Isle of Man for £400 British.
This suit was on the same day called in open court. John Roney, deceased, also obtained an execution in the Isle of Man against Cotteen and a person named Hilton (an insolvent) for £300 British, with interest, being the balance of their joint and several promissory note. Roney’s execution was, however, obtained clandestinely, upon a suit not called in open court, but purposely concealed, and in which one advocate represented both pltff. and defts. George Quayle and Co., on the 1st of March, 1817, obtained a second execution, in the Isle of Man, against Cotteen, for the sum of £678 14s. 4d. Cotteen’s insolvency being now notorious, others of his creditors filed a bill in Chancery, in the Isle of Man, complaining against Quayle and Roney for endeavouring to obtain an undue preference over the other creditors, and seeking to have Cotteen’s effects sold and distributed pari passu. On the 9th of April, 1817, and pending this bill, the applnts. were, by the creditors, appointed trustees of the estate of Edward Cotteen and Callow and Co. The applnts. were not originally, and did not become, parties to this suit.
On the 10th of April, 1817, the matter of injunction granted on the bill was argued, and supported by the Court, against Roney’s execution and Quayle and Co.’s second execution. On the 12th of February, 1818, the cause in the Chancery was heard on the merits; and it appearing that the estate was insufficient to pay the debts, and that Roney’s execution had not been obtained according to the ordinary mode, the Court decreed as follows
" This Court is, therefore, of opinion that a general distribution of the proceeds of the said estate and effects (after payment of such debts as may have a legal preference) ought to be made amongst the creditors of the said defts., Cotteen and Callow, paripassu, including therein the amount of the said executions in favour of the defts. John Roney and George Quayle and Co., and the same is so ordered and decreed accordingly."
The trustees proceeded to reduce the insolvent’s estate into possession, and called in all debts due to it, as well those bearing interest as others, in order to make distribution upon the principles directed by the Court.
By the law and practice of the Chancery Court of the Isle of Man, an aggrieved party may enter an appeal any time within six months from the date of the judgment complained of.
Roney entered his appeal from the above decree of the Chancellor the very last day allowed by law, viz., on the 12th August, 1818, but no steps were taken to notify to the trustees that such an appeal had been lodged, or in any way to prevent their acting in conformity to the decree of the Court of Chancery directing distribution ; and, therefore, the trustees having collected the greatest part of the estate, they, on the 19th of November, 1818, made their distribution, and George Quayle and Co. received their dividend on their second execution, which, as well as Roney’s demand, was ordered in the said decree to be paid pari passu with the other creditors. The trustees were at all times ready and willing to pay Roney his dividend at the same rate as they paid the other creditors, but he never called for it, and after a lapse of several years he died without having prosecuted his appeal. John Fitzsimons was sworn Roney’s administrator, and subsequently revived the appeal, which, without any notice having been served upon the present applnts., and without their being parties to the appeal, or knowing any thing of the matter, was, on the 1 7th of August, 1829, heard ex parte, and the judgment or decree of the Chancellor of the 12th of February, 1818, was thereupon reversed. His Majesty’s order of reference for hearing Roney’s appeal was granted so long ago as the 31st of January, 1823, but by judgment of his Majesty in Council it does not appear that the applnt. in that appeal attempted to bring on the appeal until the 14th of February, 1829, after the lapse of upwards of six years, when an interlocutory judgment was given.
The final hearing took place on the 17th of August, 1829, and the following is an extract of the judgment
" The Lords of the Committee, in obedience to your Majesty’s order of reference, dated the 31st of January, 1823, did, on the 14th of February last, take the said petition and appeal into consideration, and were attended by the solicitor for John Fitzsimons, administrator of the said John Roney, who prayed, in regard the said appeal had become abated by the death of the said John Roney, that the same might be revived by making the said John Fitzsimons a party applnt. in his place, whereupon their Lordships thought proper to order that the said appeal should be revived accordingly ; and their Lordships having this day resumed the consideration of the said appeal, and having heard counsel for the applnt. thereupon, none appearing for the respndts., 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 12th of February, 1818, so far as it affects the execution at the suit of the said John Roney, should be reversed."
Fitzsimons, upon obtaining this decision, presented a petition in the Court of Chancery of the Isle of Man against the applnts., the trustees, (then for the first time brought into suit,) and prayed for a judgment against them for the full amount of John Roney’s claim (but without paying interest) ; upon which the Court, on the 1st of April, 1830, ordered, "that the trustees, the present applnts., should pay to the petitioner, the present respndt., the sum of £300, with interest on the same from the 6th of November, 1816, until paid, together with interest on the sum of £400 British, from the 11 th of November, 1815, up to the 6th of November, 1816, and ten shillings and eight pence costs of the execution in the petition mentioned.
The applnts. (the trustees) obtained a rehearing of the cause on the 3rd June, 1830, by petition, and the Court thereupon directed them to pay the principal money of the execution, with interest up to the decree of the Court in 1818 ; the question of subsequent interest to be reserved, and a stay granted against enforcing the same. Fitzsimons, not satisfied with this latter judgment, presented another petition to have a final judgment extended ; and the Court, thereupon, on the 19th of August, 1830, decreed that the applnts. should pay all arrears of interest (nearly twelve years) subsequent to the distribution.
There are not any bankrupt laws in the Isle of Man, and there is no place in the Island recognized by law where money pending a litigation may be safely lodged, so as to make an interest for its owner.
When the dividend was made according to the order of the Court, the trustees had only sufficient funds to pay two shillings and sixpence in the pound ; and with what has since been recovered, there is not now in hand, after deducting expenses, sufficient even to discharge the principal of Roney’s execution.
The applnts., conceiving themselves to be aggrieved by the judgments, orders, or decrees of the 1st of April, 1830, 3rd of June, 1830, and the 19th of August, 1830, have presented their appeal therefrom, and humbly hope the same will be reversed or varied, for the following amongst other reasons :—
1st.—" Because the applnts., acting as trustees only, without any personal interest, did, pursuant to the Chancellor’s decree of the 12th of February, 1818, made in the suit of the creditors of the said Edward Cotteen against John Roney and others, distribute the whole of the property then in their hands belonging to the said estate, and there is not now a sufficient sum in the hands of the applnts. to pay their law costs and expenses attending the trust, and the principal sum claimed by the respndt. as the said John Roney’s representative.
2nd.—" Because the applnts. were bound to believe, under the judgment of the highest authority in the Island, that the said John Roney was not entitled to be paid in full, the more so because no legal steps were taken to prevent the applnts. complying with the said judgment of the 12th of February, 1818, by serving them with any notice not to pay a dividend.
3rd.—" Because the judgment of his Majesty in Council, reversing the judgment or decree of the Chancellor of the 12th of February, 1818, was made upon an appeal abandoned or not followed up by the said John Roney in his lifetime, and heard afterwards ex pane, the respndts. to the same, who had all received on their debts the only dividend the estate could pay, having had no interest in the decision thereof, or in appealing therefrom ; and the present applnts., who were not parties thereto, and had no knowledge of the same, ought, as they humbly submit, not to be affected by that judgment.
4th.—" Because in the Isle of Man there is no place, recognized by law, where trust property can be laid out at interest, or made productive for the benefit of the parties concerned ; and because it is in any event contrary to both law and equity for the applnts. to be charged with interest as they are charged by the said judgments or decrees.
"J. L. KNIGHT,
"JOHN WILSON."
This suit was afterwards terminated by a compromise.
In 1806, John Christian, Esq., since deceased, being entitled to certain lands in Lezayre, called the Flatt, the Rheast, and certain lands lying north and east of the road to Ramsey, granted the Flatt in mortgage to John Taubman, Esq., also deceased, for £G00, on the 22nd of November, 1806, and on the same day granted another mortgage on the Rheast for £500, to the said John Taubman.
In August, 1818, a third mortgage was granted by the said John Christian to the said John Taubman, for £280, partly for interest in arrear, and partly for a new debt.
In 1822, John Taubman died, and the respndt. General Goldie became entitled to the said premises in right of his wife, who was a daughter of the said John Taubman.
On the 17th of April, 1822, the said John Christian granted a mortgage to the said respndt. for £222, interest in arrear of the former securities ; and, in addition to the estates given in security before, added the lands north and east of the said road.
On the 11th of October, 1825, a fifth mortgage was granted by the said John Christian to the respndt. for £247, interest in arrear upon the former bonds.
On the 22nd of November, 1827, twenty-one years had elapsed from the date of the two first mortgages, when
On the 2nd January, 1828, the respndt., Gen. Goldie, claimed the said lands as his own, and brought his suit in the Deemster’s Court for an order of possession of the Rheast and the Flatt, which order he obtained accordingly.
On the 7th of January, 1828, John Christian entered into a written agreement to pay rent to the said respndt. for the dwelling-house and garden on the said premises, and on the 8th the respndt. obtained formal possession of the premises, and sold parts thereof to the other defts.
The said John Christian took annual lettings of the said premises to the day of his death, but was making continual efforts to redeem the said premises. On the 1 1 th of March, 1831 , he died, the applnt., his heir-at-law, being then absent in France, where he resided.
In 1884, the applnt. filed his bill in the Court of Chancery, claiming to be allowed to redeem the mortgaged premises.
The respndt. pleaded the lapse of twenty-one years from the date of the said mortgages as a bar to the said bill, according to the terms of the Act of Settlement of 1703.
Upon the argument the plea was ordered to stand over until the hearing upon the merits.
On the 4th of March, 1836, the cause was heard at great length upon the merits, and the bill dismissed without costs.
It is not usual for the Court of Chancery to state the grounds upon which the judgments are made but in this case, the applnts advocate having made a special application, by petition, to that effect, the Lieut.-Governor, in compliance with such request, caused the points upon which the Court founded its decision to be put in writing, of which the following is a copy :
1st.—"Inasmuch as mortgages similar to those which are the subject of the present suit, were known at the time the Act of Settlement was passed, the words in the act, from the date of the said mortgages, mean, according to the invariable uniform construction of them, the date on which the conveyance, deed, or bill of mortgage, is executed and perfected, whether the mortgagor remained afterwards in the possession of the mortgaged premises or not. If he does remain in possession, he is considered, in law, tenant to the mortagee, and as such, is liable to be ejected upon any breach of the covenants under which he holds possession.
"The Act of Settlement is primarily a contract between the lord and his tenants to quiet them in the possession of their lands, and to secure to him the payment of the rents and fines agreed upon ; and in ascertaining its true meaning, it must be put to this test.
" No alienation fine is payable on a mortgage, but one-third of the fine imposed in 1643, however often the mortgage may signed or devised.
" And the name of the mortgagee being once entered on the court rolls, can never be withdrawn until the mortgage be cancelled.
" Under such mortgages as those granted to Major Taubman, a mortgagee could not take possession of the mortgaged premises so long as the interest was continued to be paid.
"It follows, that no alienation fine would be paid but on the mortgagee’s entry on the court rolls, unless the heirs or assigns, or the mortgagor, chose to pay off the mortgage ; which it may fairly be presumed they never would be inclined to do, especially if the mortgage was made for a small sum of money, bearing interest at a low rate. The Legislature never could have meant to practice such a fraud on the Earl of Derby, even if it could be supposed he would have permitted them to do so.
" The Court is of opinion, that mortgages were understood in the same sense in the year 1704, as they were in the year 1777, when the Act of Settlement was re-enacted and confirmed, and as they were understood in the year 1835, when an act was passed authorizing the mortagee to sue out execution, and sell the mortgaged premises at the end of twenty-one years from the date of the mortgage ; otherwise he never could compel the mortgagor to pay the principal money under the covenants of such a deed, the interest being paid.
2nd.—" The penalty for the non-entry of the mortgagee at the end of five years from the date of the mortgage, is declared by the Act of Settlement. This point was raised and decided in the case of Brew v. Drinkwater. The words of the statute are ‘ that the mortgagee is to be entered at the end of five years from the commencement of the mortgage.’ If the mortgagor remained in possession under an agreement with the mortgagee, and the doctrine urged for the complnt. be correct, there would be no commencement of the mortgage, and no alienation fine payable. On the other hand, if the mortgagee were entered on the court rolls, and were kept out of the mortgaged premises by the annual payment of the interest money, there could be no end to the mortgage, as before shewn, and no further alienation fine payable.
3rd.—The deft. Goldie and Captain Christian’s acts respecting these mortgages, have not been such that the Court can gather from them any grounds to let the complnt. into the redemption of the premises, without shaking the foundations on which the former decisions of the Court are based, and disturbing the titles of the present possessors of property under such decisions, and under the operation of the Act of Settlement.
4th.—" With regard to the lands north and east of the road, in the possession of which the complnts. have not been disturbed, there is no case made out, or relief prayed for, which the Court can deal with.
5th.—" Subsequent mortgages for valuable considerations can in no way affect, invalidate, or destroy former mortgages.
6th.—" The practice, which has long ceased, of instituting suits in the name of the Attorney-General, for penalties in deeds, was in the nature of a complaint for a breach of contract ; and the Court dealt with the penalty so as to redress the aggrieved party, as a jury would by a more tedious process assess damages. The practice had no more reference to mortgages than to other contracts."
The complnt. appealed from the judgment of the Court of Chancery to his Majesty in Council, and the Privy Council, upon a hearing on the 8th March, 1838, affirmed the judgment of the court below.
See this case fully reported in 2nd Moore, 226.
This was an appeal from a judgment of the House of Keys reversing a verdict of a jury at law.
The applnt’s. case was as follows :—
John Cain, of the Barnagh, in the Isle of Man, being possessed of certain lands of inheritance within the said Isle, departed this life in the year 1828, without issue, and leaving the applnt., his widow.
On the death of the said John Cain, the applnt. became entitled to one-half of his lands, during her widowhood, as dower ; and the respndt., Christian, as the eldest sister and heiress of the said John Cain, became entitled to the residue of his estate in the said lands.
In the year 1833 the, applnt. was delivered of an illegitimate child.
On the 2nd of October, 1835, the present respndts. brought their action against the applnt., to eject her from possession of the one-half of the said lands which she held as widow, on the ground that she had forfeited her right therein by having been delivered of an illegitimate child : the said action came on to be tried, in the Court of Common Law, on the 16th of February, 1836, when the jury gave a verdict in favour of the deft., now applnt., from which verdict the present respndts. appealed to the House of Keys ; and the matter was heard on the 18th of March, 1836, when the House by their verdict (only agreed to by fourteen out of twenty-one who voted) reversed the jury’s verdict and evicted the widow from her dowry.
From this judgment of reversal the applnt. has appealed to his Majesty in Council.
There is no enactment among the published Statute Laws of the Island, nor any custom in use, whereby a widow is deprived of her dower under the circumstances of the present case ; but that there has lately been discovered, among the records a paper writings which purports to be an ordinance published in the year 1687, and it is signed by the then Governor of the Island only.
The whole question turns on the point, whether this ordinance is the law of the Island or not : and it is conceived that it is not the law, for the following amongst other reasons :—
1st.—" That it is not a Statute Law ; for it is only signed by the Governor. But to make Statute Laws in this Island, it is necessary that the consent of the Governor, Council, and Keys, should be attested by their affixing their several signatures ; that the law should after this receive the consent and signature of the Lord of the Island, and be afterwards promulgated on the Tynwald Hill; which promulgation is also to be attested by the signature of the Governor, Council, and Keys.
2nd.—" That in the several collections of the statutes and customary laws of the Island made by eminent lawyers at different periods, this ordinance is omitted ; and some of the ordinances, which purport to be made at the same time with this, appear to have been enacted as laws within a few years afterwards, and to have been passed with all the requisite formalities.
3rd.—" That this cannot be looked upon as a customary law; for the paper writing, lately discovered, is not of itself sufficient evidence of a custom. To prove a custom, immemorial usage must be shewn. Now, there is no case known to this Island, either before or since the date of this paper (1687), where a widow has been deprived of her dower for having had a bastard child ; and it is the accepted law, and has been decided in several cases, that a widow is entitled to her dower, notwithstanding her having lived in adultery,’ and borne children to another man, during the lifetime, of her husband.
"THOMAS PEMBERTON."
The applnt. cited the case of John Cannell v. Margaret Cubbon, widow of William Cubbon.
The bill states, that complnt. is heir-at-law of the said William Cubbon.
That the said William Cubbon and Margaret Cubbon were duly divorced from bed and board by the sentence or judgment of the Lord Bishop of this Island, by reason that the said deft. Margaret had repeatedly committed the crime of adultery during her intermarriage with the said William Cubbon.
That a certain alimony was allowed to the said deft. Margaret Cubbon, in and by the said sentence or judgment, which alimony was afterwards, by agreement between the said William Cubbon and the said deft. Margaret, commuted for a larger yearly sum or annuity, which is payable to the said deft. Margaret, during her life.
On the 7th of November, 1793, the following decree was made:
" It appears to this Court that the merits of this cause principally depend upon a question of law, whether deft. Margaret Cubbon, by the Common Law of this land, doth or doth not forfeit her right of dower of and in the premises in the pleadings mentioned, by reason of her incontinency during her intermarriage with William Cubbon, deceased, her late husband, and for which a separation from bed and board had taken place in the Ecclesiastical Court in the lifetime of her said late husband ;—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 impannelled and sworn to try the said issue do, after hearing and considering the several evidences exhibited at the said court for and on behalf of each party, return their verdict, and therein particularly specifying whether the deft. Margaret Cubbon, by the Common Law of this Isle, hath or hath not forfeited her right and title of dower of and in the premises aforesaid, by reason of the incontinency 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.ALEXANDER SHAW."
The Court of Chancery having directed the issue aforesaid, the same was heard at Common Law, and, upon the trial, the jury returned a verdict " that the deft. Margaret Cubbon had not forfeited her right of dower in the estate of inheritance of William Cubbon ;" and the Keys, upon an appeal, affirmed the verdict. See Cannell v. Cubbon, Lib. Pli., 1794, and Lib. Can., 1793.
The respndts. in their printed case, set forth the same facts as the applnts., and observed further, that right of dower in lands of inheritance (that is to say, in descended estates as distinguished from estates purchased) in the Isle of Man, bears a near resemblance to the right of dower according to the custom of Gavelkind in England, and to the right of freebench according to the custom of many English manors. As according to the custom of Gavelkind the widow becomes entitled to a conditional estate for life in one-half of the husband’s lands, provided she remain chaste and unmarried ; so in the Isle of Man she becomes entitled to a conditional estate for life, in one-half of the husband’s lands of inheritance, but subject to forfeiture if she marry or give birth to a bastard child.
The laws of the Isle of Man consist, first, of the lex non scripta, being the general customs of the Isle, or the Common Law properly so called ; and secondly, of the lex scripta or Statute Law ; but with regard to the former, the practice of the Legislature affords this advantage, that when the Lord or his Lieutenant and the Deemsters and the House of Keys were assembled upon the hill of Tynwald to make laws for the government of the Isle, it was usual for them, from time to time, there to declare, proclaim, or rehearse before the people those ancient laws or customs which before were unwritten ; and thereupon they were drawn out in writing and recorded in the Exchequer-book among the Acts of Tynwald, and were usually signed by the Governor.
At a Court of Tynwald, held on the 24th of June, 1687, various customary laws were proclaimed from the Tynwald Hill, before the Governor and officers and Twenty-four Keys, and amongst others as follows : viz.,
" That it being an ancient customary law within this Isle, that any widow that either married or miscarried by having a bastard or an illegitimate child in the time of her widowhood, is to lose or be deprived of the benefit of her widow-right in the estate wherein she married ; and whereas there has been some dispute lately, touching the said customary law, the two Deemsters and the Twenty-four Keys have desired that the said law be this day proclaimed and made known at . this court, that all persons may take due notice thereof for the future, that the same is to continue and remain in force as hitherto it hath done."
These laws were recorded in the Exchequer-book, and signed by R. Heywood, Esq., the Governor.
The customary law in question has never been repealed, and remains still the law of the Isle of Man.
On the part of the applnt., it was admitted that this was formerly the law of Man ; but, it was contended, that the forfeiture of dower by having a bastard child had long since ceased to be a law, and it was stated, that this law did not appear to be published in any printed Statute-book of the Island, and that it did not appear to be acted upon as law.
To this it was answered, that the law in question is not a statute, but merely recorded among the Statutes as part of the ancient Common Law proclaimed in Tynwald ; that no authorised publication of the Statutes and customary laws of the Isle of Man had ever taken place ; that the most complete edition, (that compiled and published by Mark Anthony Mills, a private individual), though commonly resorted to for the convenience of the profession, is admitted to be incorrect in several respects ; and although professing to publish generally the Ordinances and Statutes of the Isle of Man from authentic records, yet a great many, which are to be found in, the Exchequer-book, are omitted in his collections, and none appear in that collection from the year 1573 to 1691, (it may be mentioned that in a manuscript work still in preservation and held in high repute in the Isle or Man, selected by the late Deemster Parr, a man of acknowledged ability, and entitled "Parr’s Abstract of the Laws of the Isle of Man," the law of 1687 is expressly referred to as the existing law of the Isle.)
It was further answered, that if the customary law, as published in 1687, was in that year the law of the land, so it must still remain, unless it could be shewn to have been repealed, which it was not attempted to do ; and that the mere non-user (supposing such to have been the case) would operate nothing.
The judgment appealed from is that of’ the House of Keys, the highest Common Law Court in the Isle, and consisting of twenty-four of the first landed proprietors in the Isle, several of them being also in the profession of the law.
It is allowed on all hands, that by a second marriage a widow forfeits her dower ; and surely the same law is not less applicable in policy where she lives in a state of fornication or prostitution, and gives birth to bastard children.
( The widow’s dower in the Isle of Man is applicable to the support of herself, and for the support and education of her late husband’s younger children ; and if upon application to the Chancellor it can be shewn that the widow’s dower in her husband’s estate is made inadequate for those purposes, the heir-at-law will be ordered to contribute to the maintenance of the younger children ; and on the other hand, where the widow forfeits her right of dower, the Chancellor will compel the heir-at-law to contribute towards the maintenance and education of the younger children, unless they are otherwise provided for. Now, if the law established by the judgment in question be not supported, it will furnish an encouragement to vicicious habits, and may probably lead to this evil consequence, that the property of the husband which was intended and should have been applied for the benefit of his younger children, will be diverted to the maintenance of a prostitute, her paramour, and their bastards.
Under these circumstances before mentioned, the respndts. humbly hope that the said judgment will be affirmed with costs for ( amongst others) the following reason
"Because the said judgment is founded on the ancient custom or Common Law of the Isle of Man, as proclaimed and duly recorded at the Court of Tynwald, held in the year 1687, and which has never since been in any manner repealed, altered, or questioned.
" JAMES CAMPBELL."
Before the Queen in Council, 26th Feb., 1838.
"It is hereby ordered, that the said judgment should be affirmed, and this appeal be, as it is, hereby dismissed this board, with £91 .5s. costs."
NOTE.—See this case reported in 2nd Moore, 222, where the short minute is :—
"By the Common Law of the Isle of Man, confirmed by an ordinance, published in 1687, a widow is entitled to dower only dum sola et casta vixerit : therefore the birth and affiliation of an illegitimate child creates a forfeiture of the dower."
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Any comments, errors or omissions
gratefully received The
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