[from Advocate's Notebook, 1847]

LIB. PLI,, 3rd October, 1763.

At a Court of Common Law, holden at Peel Town, for Glanfaba Sheading, on Monday, the 3rd day of October, 1763, before the Worshipful Daniel Mylrea, Deputy-Governor of this Isle, the said Daniel Mylrea, Receiver General, John Quayle, Comptroller and Clerk of the Rolls, the said Daniel Mylrea and John Quayle, Collectors, John Quilliam, Attorney-General, and other officers then and their present.

KIRK GERMAN.

DANIEL LACE, Deemster.

MYLCHREEST v. SHIMMIN.

Henry Mylchreest and Alice his wife complained against John Shimmin, and Hugh Shimmin, his guardian, for that the defts. withhold from the pltffs. a parcel of quarterland of Kerroo Cord, of three-pence rent, or thereabouts, as will be made to appear damages, &c. &c.

Defts. non comperuit.

At the Common Law Court, in May, 1764, the action is again entered, but by both parties, and a jury sworn to try the cause, and their names are entered in the margin.

On the 1st October, 1764, the Sheading Jury returned their verdict in writing, reciting the declaration, and finding the pltffs. entitled to the premises in dispute.

This verdict was traversed by the defts., and on the 11 th March, 1765, the Traverse Jury returned their verdict "stating that they were of opinion the said Sheading Jury acted and verdicted legally in the said return ;" and they affirmed their return.

This verdict was also appealed from to the House of Keys, when they reversed the two former verdicts.

At a meeting of the twenty-four Keys, at Castletown, 8th June, 1768.

WE, the Keys of Mann, now assembled, having, in obedience to his Excellency the Governor’s order, taken into consideration a certain cause or action wherein Henry Mylchreest and Alice his wife are pltffs., and John Shimmin, and Hugh Shimmin, guardian of the said John Shimmin, defts. ; for that the said defts. withhold from the pltffs-. a parcel of quarterland, called Kerroo Cord, of three pence rent, or thereabouts ; and we, having perused the Sheading and Traverse Jury’s verdicts, with what was otherways offered, pleaded, and argued, by the parties in this cause, do find, and say, that’ the pltffs. said action at law is deficient, and wanting in point of form, wherefore we reverse the Sheading and Traverse Jury’s verdicts passed and given in this cause, with liberty to the said pltffs to commence a new suit or action for the matter in issue, in such proper and legal form as they shall be advised, which we give as our return and judgment in this cause.

NOTE.—The words in the first line of this case, in italics, are interlined, the action having originally been entered as Henry Mylchrest only

LIBER SCACCARIUS, 1774.

HENRY HOPE, Esq., Lieutenant-Governor.

THOS. GRIMSHAW v. HILDERSLEY and WILKES, Executors of the late Lord Bishop.

This cause was a petition of appeal to the staff of Government from a judgment of Deemster John Quayle’s. After the judgment had been made he ceased to be Deemster, and therefore refused to accept the appeal, for want of authority so to do. This petition therefore prayed the Governor to accept the appeal.

" For the reasons set forth in this appeal I do accept the appeal." (The appellant was ordered to enter into the usual bonds.)

H. HOPE.

LIBER SCACCARIUS, 3rd October, 1776.

APPEAL FROM THE JUDGMENT OF THE VICAR GENERAL.

ELEANOR CANNELL, Widow and Executrix of Robert Cannell v. JOHN KEWLEY, and also next of kin of the orphan child of the Appellant, deceased.

on the 20th February, 1775, Robert Cannell, deceased, and the appellant, made their joint will, appointing the survivor executor and residuary legatee, and leaving one shilling legacy to every claimant. Shortly afterwards Cannell died, leaving the appellant executor, but without revoking his will. On proving the will, the two Vicars’ General decreed the posthumous issue (being a daughter) the executor, with the appellant and Jane and Margaret Cannell, aunts of the said infant, guardians. The orphan died, and the respondent, as her next of kin, claimed administration to her effects. The appellant resisted the claim, upon the grounds that the goods and effect’s of the deceased wholly vested in her, before the child was born ; that, although from natural affection she consented to their Reverences’ decree in favour of the infant, yet the child having died before ever possessing the goods, which were all in the appellant’s possession, the object was lost, and all parties concerned must revert to the will of Robert Cannell. The Vicars’ General dismissed the appellant’s claim to all the goods, and decreed the child’s share in favour of the respondents, the next of kin of the infant. To reverse this judgment, the widow brought an appeal. The Vicars’ General accepted the appeal stating " the right of granting administration of the goods and chattels of all deceased persons within the diocese, being a matter merely of ecclesiastical cognizance, we cannot trouble his Excellency the Governor with hearing an appeal in such cases ; but so far as the appeal does not interfere with such right, and the Court’s decree of administration of the goods of Eleanor Cannell, a minor, deceased, we accept the appeal, provided, &c."

5th October, 1776.

" The Appellate Court reversed the judgment, and ordered that the appellant be fully possessed and quieted in the possession, to her own proper use and benefit, of all the worldly goods which the said Robert Cannell, her late husband, was possessed of at the time of his decease, according to the purport and conditions, and the true intent and meaning of the same joint will of them, the said Robert Cannell and the appellant."

LIB. CAN., 20th February, 1778.

RICHMOND LORD BISHOP V. JAMES COWLE, OF GERMAN.

Bill filed upon demise of Bishop Mark Hildesley, in December, 1772, stating the Bishop is Lord of the Manor called the Bishop’s Barony, and that by custom the tenants thereof, instead of paying fines for every quarterland upon alienation from one tenant to another, as is the custom in other Baronies, the said several tenants, upon the demise or translation of a Bishop, paid to his successor as a relief, an ox, or forty shillings, at the election of the Bishop. That the complainant had elected to take an ox from the deft., as proprietor of the quarterland of Ballakilworrey, in German. That the deft. states, that the twenty-four Keys had given an opinion that the tenant had the choice, whereas the complainant charges that the Keys had no jurisdiction, and neither Bishop nor tenants had attended to it.

20th August, 1778.

Deft. demurred to the Bill, and upon argument, Court decided

—" That the matters at issue between the parties with respect to the custom of the Barony, and to the payment and delivery of an ox upon complainant’s installation, are properly triable at law, and not cognizable in this court."

R. DAWSON.

LIB, CAN., 24th July, 1778.

M. STEVENSON v. R. AMBROSE STEVENSON and Rev. JOHN CRELLIN, his Guardian.

Deft. Crellin demurred to the bill upon the ground that he was only a testamentary guardian. The Court held the demurrer good, and discharged the bill as to John Crellin ; but the other deft., R. Ambrose Stevenson being a minor, the next court was appointed to swear in a guardian for him that a proper legal defence might be made.

R. DAWSON.

13th July, 1784.

ROBERT TWENTYMAN v. ELIZABETH CHRISTIAN.

Action alleging that the deft. had affiliated a child upon him. That she had since obtained the Governor’s pass, and was going to leave the Island without providing for the maintenance of the child, and therefore he prayed an arrest against her.

22nd July, 1784.

Ordered that the deft. be responsible for one moiety of the expense of the maintenance and education of her illegitimate child ; otherwise that her bail be answerable and accountable for the same, so that the whole of such expense does not exceed the sum of ten pounds, and that the deft., or her bail, pay costs.

LIB. PLI., 1790.

JAMES COPELAND and Lucy COPELAND, alias LACE v. HUGH SHIMMIN.

The declaration states that pltff. Lucy, wife of James, was cousin-german and heiress-at-law of Charles Lace, deceased, who was only son and heir-at-law of Charles Lace, senior. It charges then that the said Charles Lace, junior, on the death of his father, inherited a dwelling house and premises, which, upon the death of Charles Lace, junior, the pltff. Lucy became entitled to as his heiress-at-law, that the defts. had taken possession of them, and the pltffs. therefore brought their suit to recover the premises.

11th October, 1790.

" The trial of this cause coming on in the course of procedure, the deft’s. attorney objected thereto, alleging that the said James Copeland died pending this suit, and that the same is therefore abated ; to which the attorney for the pltff., Lucy Copeland, alleged that the premises in question were her’s, the said Lucy Copeland’s, proper inheritance ; and that the said James Copeland, deceased, her late husband, was only a nominal party for, and on behalf of her, the said Lucy Copeland, and her heirs : and upon consideration had thereof, and of what was otherwise pleaded, offered, and alleged, in behalf of each party, it is hereby ordered that this action do proceed to trial at the next term in the name of Lucy Copeland only.

THOS. MOORE.

LIB. PLI., 7th February, 1791.

ACTIONS—PATRICK.

SUIT TO RECOVER A DWELLING HOUSE AND PREMISES.

JOHN CAIN v. MARY CAIN.

4th July, 1791.

This cause coming on for trial, the defts. attorney pleaded that an injunction had been granted by the Court of Chancery, whereby all proceedings had been stayed, and that the said injunction had been ordered to be dissolved ; from which order the deft. had appealed to his Majesty in council, and that thereby the said injunction is revived and continued. The trial of this cause is therefore stayed until the event of the said appeal shall appear.

ALEX. SHAW.

LIB. PLI., 4th July, 1797,

JOHN SHIMMIN v. WM. FARGHER.

‘This was a suit at Common Law to recover six pounds six shillings, the price of a cow sold to the pltff. by deft., but which cow died the day after the sale.

The jury at law gave a verdict for the pltff. damages six pounds six shillings. From that verdict the deft. appealed to the House of Keys, but before the appeal was brought on for a hearing, the respondent Shimmin died, whereupon the appellant presented his petition to the Governor, Alexander Shaw, stating the death of Shimmin, and praying the appeal might stand revived against Jane Shimmin, the widow and executrix of John Shimmin deceased, and that the cause might be heard. Upon this petition the Governor ordered the cause to stand revived against the executrix, and to be heard before the Keys. On the 6th December, 1797, the appeal was brought on before the Keys, when Mr. Thomas Stowell, upon the part of the appellant, stated that he had applied to the judge, who tried the cause at Common Law, for his minutes of the evidence taken at the hearing of the suit before him, and that he had refused to give them ; upon this statement the Keys continued the cause.

On the 21st November, 1798, the appeal was again brought on, when the appellant made affidavit that he had applied to the Deemster for his minutes of evidence, and that he refused to give them, whereupon the House, referring to their former continuance and the present affidavit, " remanded the cause."

It appears that this judgment was returned to the Governor, and the following is the record of the subsequent proceedings :—.

At Castle Rushen, the 2nd day of November, 1798.

The Keys of the Isle having, by their Speaker, delivered unto me the within paper-writing, as their return or judgment upon the trial of the validity of the jury’s verdict therein mentioned, in pursuance of my order issued for that purpose. But the said return being, as I understand, unprecedented, inasmuch as the same neither affirms nor reverses the said verdict, either in whole or in part, according to usage or custom upon the trial of juries’ verdicts, upon traverse, or appeal to the Keys.

The said return or judgment is therefore reserved for the consideration of a full Court of Common Law, to be holden in Hilary Term next, for and in the district wherein the said cause was first tried.

ALEX. SHAW.

HILARY TERM.

At a Court of Common Law, holden for the Southern District of this Isle, by adjournment at Castle Rushen, the 3rd day of March, 1799, before the Hon. Alexander Shaw, Lieutenant-Governor of this Isle, John Lace and John Frissell Crellin, Esquires, Deemsters and Judges of the said Court, Robert Heywood, Esq., Clerk of the Rolls, and other officers then and there present.

AT LAW.

Between JOHN SHIMMIN, Pltff. and WILLIAM FARGHER, Deft.

This Court having taken into consideration the before-written return or judgment of the House of Keys, made and given in this cause, doth find, that the said Keys have, contrary to the usual mode and practice upon traverses to them from juries’ verdicts, proceeded and remanded the said cause to this Court, and thereby attempted to render null and void the verdict of the jury therein mentioned, upon the ex parte affidavit of the traverser or person removing the said cause to the Keys, purporting that he could not obtain the minutes or notes taken by one of the judges of this Court upon the said trial, in order to lay the same as evidence before the said Keys.

That the said jury had, upon trial of the said cause, as well as all other similar juries at Common Law, a right to verdict upon the matters in issue in favour of the pitif. , or to dismiss the suit before them, or to nonsuit the said pltff., as should appear to them to be just ; and upon which nonsuit the pltff. would have a right to bring a new action if he should think proper.

That the Keys, upon a traverse to them from the verdict of any such jury, had not, nor now have, any right or power of decision over the cause or matters under traverse, which the jury who tried the said cause in the first instance had not over the same, but in the case any illegality should appear to the Keys in such jury’s verdict. The Keys had, and now have, a right to revise the same, in part or in the whole, and to make such decision or return between the parties as the first jury legally ought to have made in the matters at issue ; but neither the jury, nor the Keys, nor either of them, formerly had,. nor now have, under any circumstances whatsoever, any right, power, or authority, to remand any cause to this court, nor to interfere with the same in any respect whatsoever. And the said Keys have not now, nor ever had, any executive authority to carry their own returns or judgment in execution ; or any power over the same, more than the first jury had over their verdict, after the same had been delivered according to law, unless when the Keys have been ordered to re-hear a cause which had been heard by them, and judgment given therein.

That all traverses to the Keys come on to be tried before them under the order of the Governor, or Lieutenant-Governor, as supreme magistrate of the Court of Common Law, and the returns or judgments of the Keys are by law to be delivered by them, or a majority of them, to the Governor as such ; and all appeals from their judgment are to be presented to, and accepted by, the Governor in the same manner as appeals from the decisions or judgments of the Court of Common Law in matters which would not be put to a trial by jury by the said Court.

That this Court is not bound, nor any of the judges thereof, to give up to the parties in any suit, or tothe Keys, any minutes or notes, which any of the judges might think proper to take upon the trial of any cause before a jury at Common Law upon xzca aoee evidence, but should the court consent to give up any such minutes for the purposes aforesaid, the same could not be evidence upon a traveise to the Keys

That the attorneys, or some of them, of the parties in this case (and who were members of the Keys, and sat in judgment upon the said traverse) either through wilfulness, or neglect, omitted to pursue the legal mode directed by the statute for perpetuating or preserving the testimony of the witnesses examined viva voce at Common Law, and which omission appears to have occasioned the said irregularity in the proceedings of the said House of Keys in this cause.

That upon full consideration of the matters aforesaid, this court doth adjudge that the said pretended return or judgment of the Keys, remanding the cause therein mentioned to this court, is, in point of form, and of effect in practice, unprecedented, and tends to confound the province of a jury with that of a court, and to make the trial by jury uncertain, precarious, and vexatious ; and that, therefore, the said judgment ought not to be carried into effect, and that the said verdict of the jury in the said judgment mentioned ought to stand, and be in as full force and effect as if the said judgment or return of the Keys had never been made or given in the said cause, until the same be reversed in the whole, or in part, in due form of law.

ALEX. SHAW,

JOHN LACE,
JOHN T. CRELLIN,
ROBERT HEYWOOD.

20th November, 1799.

The appellant presented his petition to the Governor, praying a hearing of the appeal; upon which, Governor Shaw granted an order, stating that it appeared not to be a common or ordinary case of traverse, and therefore he ordered the petition to he heard and considered of, in a full Court of Common Law, on the 10th day of February next.

On the 10th February, the Duke of Athol presided and made the following judgment

This Court is of opinion that in any matters of traverse according to the laws of this Island, it is a condition implied or understood in law, that the party traversing is bound to produce to the Traverse Jury upon the trial, before such Traverse Jury, or to the Keys, in case and for traverse to them, all the evidence taken before the first jury ; and it appearing from the petrs. own showing that the parties in this cause neglected to have the evidence(taken upon the trial before the first jury) committed to writing, according to law and practice, so as to entitle the party traversing to any benefit from a traverse to the Keys, and that therefore the petition ought to stand dismissed ; and the same is hereby ordered to stand dismissed accordingly.

ATHOL.

LIB. PLI., 12th October, 1765.

JOHN CHRISTIAN and JUDITH his Wife v. EDWARD MARTIN.

The declaration stated that Thomas Corlett, by deed dated the 17th March 1748-9, mortgaged unto John Kerruish, for £13, a house in Ramsey, with all the easements, down from the gable to the common street, being of one penny cottage rent.

On the 27th May, 1754, the said Thomas Corlett sold the said premises to Thomas Callow, and he entered into and possessed the said premises until the said mortgage was lapsed in law.

After the said lapse, Callow quitted the premises, and Kerruish took possession by virtue of his lapsed mortgage.

On the 1st August, 1781 , the said John Kerruish, gifted, granted, and passed over, to and upon the pltffs., all his right and title to the said premises.

The pltffs. thereupon entered into possession, converted the said house into a smithy, and set the same to tenants with the easement adjoining the gable thereof; and the said tenants thereupon entered and possessed, and occupied the same in like manner as the said Thomas Callow had formerly done.

That of late the pltffs. had found it necessary to enclose the said easement, and had fenced the same with a stone wall, which the deft. had thrown down, by means of which, the pltffs. charged they were damaged in £20 ; and therefore they bring suit, and pray judgment for the ascertaining of their rights in the said premises of one penny rent as aforesaid, with the damages aforesaid, according to due course of the Common Law within this Isle.

9th May, 1796.

After view, the jury found a special verdict—" That the deft. had right in the easement in the pleadings mentioned, and the pltffs. have also a right of easement in, but not an exclusive right to, the said easement, whereon to ground a suit against the deft., and that therefore the pltffs. recover nothing."

24th November, 1796.

The Keys confirmed the verdict.

LIB, PLI., 9th July, 1796.

The DUKE of ATHOL and Deemsters LACE and CRELLIN, the Water Bailiff, Clerk of the Rolls, and other officers.

CHARLES LACE, by BREW and JOUGHIN, his Guardians, v. JANE LACE, Widow, and MARY LACE, an Infant, by EVAN GELL, her Guardian.

The declaration states that the pitif. was the eldest son and heir-at-law of Charles Lace the younger, of Ballacrebbin, who was the eldest son and heir-at-law of Charles Lace the elder, and Mary, his wife.

That the said Charles Lace the elder (being entitled to certain purchased lands) did, by his last will and testament, of the 21st February, 1780, "leave, devise, and bequeath unto the said Charles Lace the younger, his part or purchase of Close Howm, as inheritance to the said estate of Ballacrebbin, to be possessed by him after his wife’s decease, and no sooner ;" and he appointed his said wife executrix. After his decease she proved the will, and in pursuance of the said devise, and agreeable to the intention of the testator, and in terms of the said will, entered into, and possessed herself of the whole of the said premises, and so continued until her decease, by means whereof the pltff, charges, that, upon her decease, the said premises descended to him as heir-at-law of the said Charles Lace the younger, deceased.

That notwithstanding the premises, the defts. have possessed themselves of one moiety, or half of the said premises of Close Howin, under a devise of the same, pretended to be made by the said Mary Lace, deceased.

11th July, 1796.

The jurors on their oath say, the pltff. recovers nothing, and they leave the defts. in possession.

An appeal was entered from this verdict, but was not prosecuted.

NOTE—There are two or three things to be observed in this declaration. There is not any lord’s rent set forth in it. The parish in which the property claimed was situate is not set forth. It appears that under this appointment as executrix, and the limitation contained in the devise to the heir, the widow actually entered, and that the heir acquiesced therein. But see thereon the case of Garrett. v. Clucas and Wife post. Whilst the verdict shews that the jury did not consider a widow, taking the whole property for life under such a devise, was deprived of her absolute right to her own half of the purchased lands.

LIB. PLI., 1791.

Deemsters LACE and CRELLIN.

WM. CALEY AND ELIZABETH CALEY, alias KEWIN v. JNO. KNEALE.

The declaration states that Joaney Kewen was entitled to one moiety of Robbin’s Croft, in Andreas, of one shilling and sixpence rent, which she devised, by will, to her daughter, Betsy Kneale, the wife of’the deft. That the defts. wife died without issue, or making disposition of the property, whereupon the said moiety of one shilling and sixpence rent descended to the pltff. as heiress-at-law of the said Betsy Kneale,

That the deft. has since intermarried and forfeited his said right of dower ; the deft. nevertheless withholds the premises, whereby pltffs are damaged in the sum of £100, and for the recovery of the said moiety of one shilling and sixpence rent they bring suit.

The pltff. recovers the premises of ninepence rent.

LIB. PLI., 13th February, 1798.

E. CHRISTIAN v. THOMSON and RICHARDSON.

The declaration in this case was filed by Edward Christian, as heir-at-law of Quayle Christian, who was possessed by descent of the estate of Paldowie, in the parish of Lezayre, as heir-at-law of his father Edmond, deceased.

Quayle Christian died in January, 1795, and pltff., as his eldest brother and heir-at-law, became entitled to the premises.

The declaration then states that the defts. pretended that the said Quayle Christian, by a "paper-writing," executed in Jamaica, on the 20th July, 1790, granted and conveyed the premises to the defts. ; and the defts., under pretence thereof, had prosecuted the pltff. and obtained judgment and execution against him for £14, as rent for the said premises, for the year ending the 12th Nov., 1796 ; by means whereof the pltff. charged that he was damaged in the sum of £100 ; and for the recovery of the said premises called Paldowie, as well as said damages, he brought suit.

To this declaration the defts. pleaded that by an Act of Tynwald, promulgated in the year 1737, it is amongst other things provided, that disputes concerning mortgages shall be determinable in the Court of Chancery.

Upon the argument the plea was held good, and the suit dismissed.

NOTE.—The doctrine laid down by this plea is stated without the words of qualification attached to it in the statute, viz., " according to the Act of Settlement," and therefore the judgment in this case, though strictly applicable to it, might mislead as to others, without some explanation. Under a subsequent case I shall offer a few observations on this part of the law.—ED

LIBER SCACCARIUS, 10th October, 1798. Governor SHAW.

THOMAS STOWELL, Acting Attorney-General v. JOHN WATTERSON and OTHERS.

This was a petition addressed to Governor Shaw, stating that according to ancient custom in the Isle a certain instrument, called " the Cross," hath been and is made use of in the different parishes of the Island, by order of the proper officers, for the purpose of calling the whole, or a certain part of the parishioners together, in case of invasion by an enemy, and upon other emergencies, and great respect hath been and ought to be paid to the summons given by means of the said instrument as aforesaid. That John Watterson, and others named, of the parish of Rushen, with a view of bringing such summons of the cross into contempt, and rendering the same nugatory, did on or about the 13th day of September last, without any lawful authority, just cause, or proper occasion, cause the inhabitants of the said parish to be tumultuously assembled together by means of a cross or crosses sent round by them for that purpose. That such, the conduct of the said John Watterson, and others, tends to the subversion of all order and good government, and, in the present times particularly, might be attended with the most dangerous consequences. The petition prayed that the defts. might be dealt with for the said offence according to law.

The defts. having expressed themselves very sorry for their imprudent conduct, the Court passed over the offence upon their entering into bonds in £60, to keep the peace and not excite or stir up any person or persons to disobedience or contempt of the laws and government of this Isle.

LIB. PLI., 8th July, 1800.

Deemsters LACE and CRELLIN.

THOMAS CANNELL v. DAVID QUAYLE.

The pltff. in this case stated in his declaration that he had a right to cut turf on the Common in the parish of Michael, and that he had accordingly dug a pit, cut a quantity, and spread it out to dry. That the deft. had unlawfully entered upon the pit so dug and opened by the pltff. and cut a quantity of turf for his own use, and had removed and cast aside the pltff’s turf, and had injured and wasted it. Damages were laid at £20.

On the 8th July the cause came on to be heard, and the following rule is entered upon the action :— It appearing from the evidence produced by the parties to be necessary that the jury should view the damages done to the pltff’s. turf in the declaration mentioned, and that the parties and the several witnesses should also attend upon this occasion. It is hereby ordered and directed that the said jury and all other parties, persons, and witnesses, do attend upon the premises in the declaration mentioned, in order to view and examine the damages complained of, at eight o’clock to-morrow morning; and it is hereby also ordered that the further trial of this cause be continued until ten o’clock to-morrow, and in the meantime neither party do presume to alter the present situation and state of the said turf, as they shall answer the contrary.

Upon the 9th July the cause was resumed, and the jury having viewed the premises, returned their verdict " that the deft. had done no injury to the pltff’s. turf," and they dismissed the suit with costs.

LIB. PLI., 8th February, 1802.

M’CLURE v. FARRAR.

This case was brought to recover the amount of a promissory note for £84, staked and lost in a trotting-match between two ponies, the loser (the deft.) having refused to let one Stowell, the stake-holder, give up the note.

The jury gave the following verdict—which jurors on their oaths say :—" That it appears by the statements of both parties that the matter at issue is for a gambling transaction, and brought to receive aid of a court of law for or against the pltff. or deft. The said jury also say that the same ought not to receive the aid of law to carry the same into effect, and therefore dismiss the suit, and that each party bear their own costs."

Delivered to John Lace and John F. Crellin, Deemsters