[From Laughton's Reminiscences, 1916]
Some thirty or forty years ago there resided in Douglas an elderly lady named Mrs. Evans, a widow, of eccentric habits, and fairly well off. For some time before her death she was bed-ridden, and was very frequently visited by her friend, Miss Grice. She subsequently died intestate, and her brother being her only next-of-kin, obtained a grant of administration of her estate.
A few days before her death, Mrs. Evans had handed to Miss Grice a pair of stays, which, during her illness, she had kept near her in the bed, saying something to the effect that Miss Grice was " to take care of " or " keep " them. The exact words used were not clearly proved. Miss Grice put the stays away in a cupboard in the bedroom where they would be safe, and thought no more of the transaction until after Mrs. Evans died when, on examining them, it was found that, carefully stitched into them were bank notes to the value of £400. Miss Grice thereupon retained possession of the stays and money, claiming that they had been a gift to her by the deceased.
After the funeral, the administrator, who lived in England, and knew very little of his sisters affairs, enquired of Miss Grice As to the deceased's property, and the circumstances under which she had obtained the stays. She declined to give him all the information he had requested, and therefore he instituted a suit in the Ecclesiastical Court (which at that time had jurisdiction in all matters relating to the estates of desceadants) against Miss Grice, for a discovery of assets of his sister, and to obtain an order for the delivery of such assets as might be found to be in her possession. A suit of this kind, which is technically called a Suit for Discovery, is peculiar to the Isle of Man. It then appeared that Miss Grice had received the stays, the money being stitched in them. The circumstances connected. with the actual delivery of the stays by the deceased, her words, and the manner of the reception of the stays by Miss Grice, were proved. The defence was that the stays and money were an absolute gift (a gift "inter vivos," as it is termed) to Miss Grice; but if not, they, were a " donatio mortis cause," meaning a gift absolute, if the donor died before recovery from her illness, but otherwise to be restored.
The Vicar-General (Mr. Thomas A. Corlett) the Judge of the Ecclesiastical Court, decided that there was no gift of either description, and that the stays had been delivered to Miss Grice for safe custody; and she was therefore ordered to pay the amount found in the stays to the Administrator.
Miss Grice appealed to the Staff of Government, the Insular Court of Appeal, the Judges being the Lieutenant-Governor, the Clerk of the Rolls, and the two Deemsters. This Court decided that the stays and the money in them, were an absolute gift. It seemed to be considered immaterial whether it was one " infer vivos " or " mortis cause," as the deceased had not recovered from her illness. The judgment appealed from was therefore reversed.
The Administrator then appealed from the judgment of the Manx Appellate Court to Her Majesty in Council; and the appeal was heard before the Judicial Committee of the Privy Council. Amongst the Counsel engaged were Dr. Phillimore and Mr. (now Sir) James Gell, of the Manx Bar, for the Appellant; and Sir Hugh M. Cairns (afterwards Lord Cairns), and Mr. Lawrance W. Adamson, of the Manx Bar, for the Respondent, Miss Grice.
During the hearing of the appeal, the Lords of the Judicial Committee, in the opinion of all the Counsel engaged in the case, took a strong view adverse to the Appellant, but they reserved judgment for two or three days. Mr. Adamson, being fully convinced that the Appeal would be dismissed, asked Mr. Gell to join him in a telegram (the fee at that time was 4s. 6d.) to the Island, announcing that the appeal had failed. Mr. Gell declined, as he did not quite see that he need spend money in announcing a defeat, and in any case he preferred to wait until Judgment was actually given.
To the astonishment of all concerned, the judgement when delivered. proved to be in favour of the Appellant. The decision of the Staff of Government was reversed and that of the Vicar-General restored. This case excited considerable interest, Miss Grice being a lady much liked and esteemed in the Island; but it attracted public attention for an other reason, viz., the extreme danger, except where supported by overpowering evidence, of establishing a precedent whereby the personal property of a dying person might be successfully claimed by attendants about her bedside, upon no more certain proofs than alleged spoken words, of possible doubtful meaning, and for the exact accuracy of which the court would probably have to depend upon the evidence of a witness directly interested in establishing the validity of the gift. The very greatest confidence was placed in the bona fides of the lady in question but the best of us have not always the most retentive memories, and there might be a different construction put upon the words " These stays are for you to take care of," and " These stays are for you to keep."
[The start of the case can be read in the files of Episcopal Wills for 1860 where that of the administration of the estate of Anna Evans contains the following between James Cosnahan(brother to Anna) Administrator of the estate of Anna Evans deceased [plaintiff]
and Ellinor Grice Defendent
In the Ecclesiatical cout
Account returned by the above named defendant in obedience to an order of his worship Vicar General Corlet made in the above styled cause at an Ecclesiatical Court held in Douglas on the 19th day of December 1860
The Defendant admits she is in possession of a pair of stays which contained £490 in Bank notes including a bank post bill for £100 which with the contents were given by deceased to Defendant and claimed by her as a Donatis Mortis causa.
The Defendant also admits the following goods the property of the deceased were removed by her after decease of said Anna Evans for safe custody - one gold watch, five rings, one purse containing two pounds one shilling and four pence - the whole of the above were tendered by Defendant to Plaintiff before the institution of this suit and he took possession of the purse and its contents and retained the same but refused to accept the watch and rings. Defendant has also possession of a small bottle of eye water the property of deceased.
This day personally appeared Ellinor Grice the Defendant and made oath on the Holy Evangelist that the above is a full and true account of all rings, watches bank notes cash and other property and effects belonging to the deceased Anna evans which came into her possession.
And deponent further saith that she hath no knowledge of any other rings watches bank notes cash or other property and effects belonging to said deceased save and except such personal property and effects as were taken possession of and retained by the said James Cosnahan.
(two signatures one ? Jas Cosnahan other illegible)
returned by the above named defendant to the ecclesiastical registry this 24 day of July 1882
Samuel Harris Episcopal registrar]
There was one very important case tried in the Island during Sir Henry Loch's governorship in which I was partly concerned; and which, having gone through our Insular Courts, found its way up to the Judicial Committee of the Privy Council. viz., "Laughton versus Powys, Bishop of Sodor and Man." It is reported in 4 Law Reports, Privy Council Appeal Cases 19'n, and judgment was delivered by Sir Robert Collier on December 14th, 1872.
It may prove interesting to some of my readers to give a brief account of the manner in which this case originated, and some of the circumstances connected with it.
The late Bishop Powys was a curious mixture. He was a gentlemanly man, a fair preacher, and I have always understood, an excellent host; in fact, given as a Bishop should be to hospitality, and to those to whom he took a fancy he was a warm friend, but I cannot speak from experience on this point, as he certainly never took a fancy to me.
He was capable, however, of being tyrannical to his Clergy, and indeed. upon one occasion, his Lordship seemed exceptionally severe. He summarily dismissed one of his senior Clergy the late Reverend John Cannell, then Chaplain of St. Matthew's from the office of Surrogate, which he had held for upwards of twenty years. That gentleman consulted me, and by my advice, placed himself in direct communication with his Lordship, with the object of ascertaining the nature of the offence with which he was charged, and for which he had incurred so severe a punishment. His Lordship was obdurate; he altogether declined either to specify the offence or to rescind his dismissal and the poor old Clergyman for he was poor, and between sixty and seventy years of age had to remain, and did remain to the day of his death, entirely ignorant of the cause of the Bishop's action.
This excited almost universal indignation. A public subscription was inaugurated, and Mr. Cannell was presented with an exceedingly handsome testimonial, consisting of a purse of gold and a solid silver tea and coffee service and large silver tray, in proof of the high esteem in which he was held by the general public, and that the duties of his office had been discharged to their complete satisfaction.
Shortly subsequent to this, His Lordship entered upon a virulent dispute with another of his Clergy, viz., the late Reverend William Drury, the beloved Vicar of the Parish of Braddan, as to the right of presentation to St. Thomas's Church, in Douglas. The Bishop was, I think, advised. so far as he would consent to take advice, by the late Vicar-General Jebb and also by Sir James Gell then Attorney-General; Mr. Adams acting for the Vicar.
The controversy waxed warm. His Lordship at length went so far as positively to close the Church, and the quarrel became quite a scandal. I am not going into the merits of this wretched squabble. very possibly there may have been temper and mistakes on both sides, my only object is to explain, as a matter of Island history, the origin of my prosecution of the Bishop for libel.
An annual Convocation of the Bishop and Clergy is usually held at Bishop's Court on the Thursday in Whitweek; when the Bishop, immediately after the Holy Communion has been administered, delivers his annual Charge. During the pending of this dispute, the period for the Convocation came round, and the Bishop in his Charge, took the opportunity to refer to the controversy with reference to St. Thomas's. Amongst other things he stated that " the Vicar of Braddan had displayed his imbecility by entrusting his case to a malicious and unscrupulous lawyer, etc., etc.", alluding to Mr. Adams, Mr. Drury's adviser. The assembled Clergy were completely staggered. The good old Vicar, " Parson Drury " as we always called him, was a general favourite, and Alfred Walter Adams was a leader at the Bar, and enjoyed the fullest confidence of the Island. Of course these astounding words, uttered by the Bishop of the Diocese, immediately after one of the most solemn rites of the Church, and in the presence of the entire body of his Clergy, produced a most startling effect throughout the Insular community. The next day Adams retained the late Mr. Richard Sherwood (afterwards Deemster) and me to take criminal proceedings against the Bishop for libel. We at once communicated with the Attorney General, as His Lordship's legal adviser. That gentleman met us in conference, when he frankly admitted that he could not defend the words of which we had complained; that they had been inadvisably spoken, and that he had counselled his client to withdraw the words, and make a most ample apology.
This at first we positively refused to accept, alleging as our reason that His Lordship had behaved so arbitrarily to his Clergy generally, that he deserved no consideration, and moreover, that in the case in question, the words used were of so scandalous a character, and uttered upon so solemn an occasion, that an apology could not be recognised.
At length Sir James Gell produced a letter in the handwriting of the Bishop, making an unconditional apology, so utterly abject, that Adams, in the most generous and magnanimous manner, unreservedly accepted it. The Bishop stated therein, that he was prepared to send a copy of it to each of the Clergy who had been present at Convocation. Adams, most handsomely, replied that having accepted the apology, he had no desire to place His Lordship in so humiliating a position with his Clergy, and that therefore he would dispense with any further publication of it.
This surely was the conduct of a fine large-hearted, generous fellow. The Bishop, however, did write to each of his beneficed Clergy, informing them " that as Mr. Adams had made a satisfactory explanation of his conduct in the case referred to, he (the Bishop) was glad to be able to withdraw the words which he had used regarding him. His Lordship marked each letter " Private and confidential," so that none of the recipients were at liberty to divulge the contents.
One of them, however, now dead, and whose name is known to me, showed Adams the letter which he had received, but of course he was to make no public use of it.
If, under any circumstances, a man can be " angry and sin not," this was such a case. Adams went into divine rage, and determined to cut and publicly insult His Lordship upon some suitable occasion.
It quickly came. His Excellency the Lieutenant Governor, the Bishop. the Deemsters, etc., etc., members of the Governor's Council, one morning were passing through the Advocates' Robing Room, in order to get on to the Bench in the adjoining Tynwald Court. Adams planted himself in this room, exactly facing the door of entrance, with his hat on, which. upon the appearance of His Excellency he immediately doffed. making a low and respectful obeisance. The Bishop followed and bowed to Adams, who deliberately replaced his hat on his head, looked him stedfastly in the face with an expression of contemptuous scorn, and turning his back upon him, marched away. This was witnessed not only by His Excellency and the Judges, but by all the members of the Bar, who were in the Robing Room, preparing for the Court.
I have referred to these matters to show the then state of things in this Diocese, in order to make it plain why I, subsequently took the trouble to institute an action for words uttered by the Bishop. which under other circumstances, I should not have noticed.
My cause of action also arose out of the contention between the Bishop and "Parson Drury " for the right of presentation to St. Thomas's Church. It came about as follows. His Lordship, finding that the Vicar would not give up his asserted claim, thought fit to apply to the Legislature, seeking to acquire what he wished for by the passing of an Act of Tynwald.
He felt secure of the Bill passing the Governor and Council, as they were only nine in number, of which he and his Vicar-General and Archdeacon formed a third and inasmuch as the Governor himself had ordered the Attorney-General to bring in the Bill, which he had accordingly prepared, there was at one stroke a majority. It certainly passed the Council right merrily. It had, however also to pass the House of Keys. and in due course it was sent to them from the Council. I was retained by a considerable proportion of the parishioners to oppose the passing of the measure upon two special grounds; first, that it was unfair to the vicar of the Parish; and, secondly, that the Bishop had in divers ways, completely forfeited the confidence of the Diocese, and was undeserving to be entrusted with further patronage.
My address to the House was abundantly successful, so much so, that it adopted the very unusual course of declining even to discuss the clauses; being of opinion that the object, as stated in the preamble, viz., " for the cure of souls," was not 'the object of the Bill, which, in the opinion of the House, really was To obtain the patronage of the Church; and the Bill was therefore summarily rejected.
Of course, in order to carry out my instructions I was obliged to make strong remarks upon the conduct of the Bishop, which naturally could not be otherwise than disagreeable to him. His Lordship, in retaliation, retook himself once more to Convocalion, whereat he delivered another Charge to his Clergy, commenting freely and strongly upon my speech before the House of Keys.
Recollecting the treatment Adams, the Reverend J. Cannell, and others, had formerly received at his hands, I determined to prosecute His Lordship for libel; which I accordingly did.
The trial before the jury continued for twelve days amid general excitement throughout the whole Island when, finally, the jury found a verdict against the Bishop for £400 and costs. Ultimately, the case went, by appeal, to the Privy Council, where it was virtually admitted that the words used by the Bishop were libellous, but that they were a privileged communication; and the sole question at issue was " whether or not there was evidence of express malice on the part of the Bishop, which ought to have been submitted to the jury; not indeed a mere particle of scintilla of evidence, but such as could reasonably support a finding for the Plaintiff." " It has been contended," said Sir Robert Collier, in giving judgment, " that the malice in this sense is to be inferred from the language of the Bishop's charge, and, undoubtedly, a privileged communication may be couched in language so much too violent for the occasion, as to afford in itself evidence of malice whereby the privilege is forfeited. Some expressions here used (quoting them) undoubtedly go beyond what was necessary for self defence, but it does not therefore follow that they afford evidence of malice for a jury. To submit the language of privileged communications to a strict scrutiny and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit if not altogether defeat that protection which the law throws over 'privileged communications.' It is enough that having regard to the circumstances and' nature of the attack upon him the Bishop may in their Lordship's opinion have honestly believed that everything which he said was true and proper for his own vindication, although in fact some of his expressions exceeded what was necessary for it, and that the language of his charge is more consistent with such honest belief, and with the purpose of self-vindication than with that of injuring the Plaintiff. This being so the Deemster ought to have decided that the language of the charge afforded no evidence of malice to be submitted to the Jury." The appeal, upon this technicality, was therefore dismissed.
Before entering my appeal I had obtained the opinions of two of the most eminent English Counsel, who, in consultation, had given their opinion in writing, that the Bishop having, in the libel complained of, unquestionably gone beyond what was necessary in his defence, had exceeded the privilege which the law allowed him, and so far as he had thus exceeded it, he could not claim its absolute protection, but it then became a question for the jury whether he was influenced in such excess by malice; this they would be entitled to answer either in the affirmative or otherwise.
The test, however, which the Lords of the Privy Council have laid down for future guidance is not, did the Bishop, in law, exceed his privilege; but, having exceeded it, did he in fact honestly believe that such illegal excess was true? This, of course, must now be taken to be the law. Its strict application, however, may at times be inconvenient. Suppose a case. A Counsel, in the due discharge of his professional duty, and legitimately acting upon his instructions, mattes strong but pertinent remarks with reference to one of the parties or witnesses in a suit. The person so attacked defends himself, say, in the newspapers. This is of course a privileged communication; but, assuming that he goes beyond what is necessary for his defence, and recriminates upon Counsel, using reproachful words, which, unless protected by his privilege, are libellous. It will be open to him, upon swearing that he honestly "believed" what he said to be true, to induce the Judge to withdraw the fact of malice or not from the Jury and enter judgment for the Defendant.
Prior to this decision I should have thought that the question of whether the Bishop had gone beyond what was necessary for his defence, thus exceeding his privilege, was a question of law for the Judge; and that the second question of whether he was or was not actuated by malice in such excess, was a question of fact for the Jury.
The Deemster in the Court below decided that the Bishop had exceeded his privilege, and left it to the Jury to say whether they thought that His Lordship, in exceeding such privilege, had or had not been actuated by malice, and if they thought that he had, " then that they should give such damages as were commensurate with such excess"; wherefore the Jury found their verdict as above stated.