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[from Advocate's Notebook, 1847]
COMMON LAW, 15th Nov., 1842.
CHRISTIAN, P.
CRAIGIE for Pltff. ; CLUCAS for Deft.
This was the first court, and the court witnesses being called to prove the summons of the deft., George Collins, one of the witnesses, did not appear ; whereupon the pltff’s. advocate moved for a presentnlent against the court witness, and for a continuance of the cause.
CLUCAS, for deft.—The pltff. cannot obtain either motion. The summons not being proved, the declaration cannot be filed, and, the pltff. cannot obtain continuance, because there is not any cause on the record to continue. Neither is the pltff. entitled to a presentment against the witness, because there is no cause depending in which the witness can be produced again, which is the only object of a presentment. The course is to move that the court witness be fined for not appearing.
Per Curiam.—The summons not being proved I have no cause before me upon which to enter a continuance. A presentment would be of no use, and cannot be granted ; but I shall fine the witness £3 for his contempt in not attending the court.
CHANCERY COURT, 15th Nov., 1842.
CHRISTIAN, P.
DUMBELL for Pltif.; BLUETT and CORLETT for Defts.
This was an application for an extension of time to prosecute an appeal to her Majesty in Council. It was stated, on the part of petitioner, that the bonds were entered into on the 23rd May, and expired on the 23rd August. That the exemplifications were of very great length, and were not obtained from the record until after the time had expired for lodging the printed cases. When sent up, the attorney employed in London was out of town, and remained so for several weeks, and, therefore, the appeal was not lodged until November, a certificate of which was now on record ; but it had been found quite impracticable to get the case prepared and printed, and, therefore, the applnt. prayed for some further time to lodge his " printed cases," the applnt. being positively engaged in the due prosecution of the appeal.
CORLETT and BLUETT, for deft.—No due diligence has been used. The decree was granted in April, 1842 ; the appeal was accepted on 23rd May to prosecute in three months. No steps were taken to proceed with the appeal ; the three months expired in August, and not until November was the appeal lodged ; and now they seek further time to lodge the cases. In the matter of the Lord Bishop v John Fitzsimmons, Lib. Ph., 1836, where the dates of the proceedings were at the same distance of time apart as these, the Court refused an application for time, and dismissed the petition with costs. In the case of Cosnahan v. Cosnahan, in December, 1836, the application was also dismissed with costs. Security is given for £500 only in this case. It is of consequence to the applnt. to delay the case, that he may obtain another year’s rents and the crops of the lands now decreed to the respndt.
DUMBELL.—There is no intended delay. In the cases quoted, the Court evidently considered, from the facts, that there was no bonafide intention to prosecute the appeal. Here, I pledge myself, the appeal will be prosecuted with effect and with all speed.
Per Curiam..—If the Court sees a real desire to prosecute an appeal, they will allow time.
One month allowed.
CHANCERY COURT, 3rd Dec., 1842.
READY, G.
DUMBELL and STEPHEN for Pltif. ; CORLETT, BLUETT, and CLUCAS for Defts.
This was a bill filed by the complnt., John Cowle, as heir-at-law of William Cowle deceased, seeking, amongst other things, to have a deed of sale of the 25th May, 1795, (under which the deft. Cowin claimed a house and premises) declared void, and a fraud, as against the complnt., under the following circumstances
William Cowle, by deed of sale in trust, bearing date the 4th of May, 1778, conveyed to T. A. Corlett and William Christian certain lands and premises, to hold to them their heirs and assigns, or the heirs and assigns of the survivor of them ; in trust, amongst other things, that they, the said Thomas A. Corlett and William Christian, should raise, by way of mortgage, or sale of part of the said premises, a sum sufficient to pay off the mortgages affecting the premises, as well as whatever other debts were then due by the said William Cowle ; and, in further trust, that the said trustees should account with, and pay over to, the said William Cowle, (the grantor) for life, the clear proceeds of the rents, issues, and profits of the said premises ; and upon his decease, to convey the said granted premises to whatever person should then appear to be the heir-at-law of the said William Cowle. On the 23rd May, 1786, the grantor and the surviving trustee mortgaged the premises to the Vicar and Wardens of Andreas for £55 to pay off an existing mortgage, and certain pressing debts incurred by the grantor. The original trustees died, and their heirs-at-law, with William Cowle, the grantor, executed a new deed of trust to other trustees, in terms of the first deed. On the 25th May, 1795, William Clucas and William Christian, the new trustees, sold the premises in dispute by public auction, in order to raise money to pay off the mortgage of 1786, and other debts of William Cowle, the grantor. Daniel Kneen, then the husband of the deft. Lucy Cowin, purchased the premises in dispute, and obtained possession of them on the said 25th May, 1795. He died, leaving the said purchased lands to his wife, the deft. Lucy ; who afterwards married one Thomas Cowin, whom she also survived, being still possessed of the premises which had been in the possession of her previous husband and herself for forty-five years up to the filing of the bill. William Cowle, the grantor, died in 1824, at which time the right of the compint., John Cowle, commenced, he being his heir-at-law, but he never took any proceeding, or set up any claim to the premises, until the filing of this bill on the 24th January, 1840.
The deft. Lucy pleaded, specially, her possession for forty-five years ; and that by the Act of Tynwald of the 1 8th February, 1593, limiting the entry of claims to lands to twenty-one years, the complnt. was barred from recovering the same.
Upon the arguing of this plea it was alleged, for the complnt., that no act of the trustees could prejudice his right, which did not accrue until the death of his father, William Cowle, the grantor. That only eighteen, and not twenty-one, years had elapsed since his right accrued ; and, therefore, the said plea was bad as to him.
The Court held over the plea until the merits, and directed the deft. to answer the bill.
On the 3rd December, 1842, the plea was again argued, together with the merits of the case, when the Court made the following judgment :— The Statute of Limitation does not apply in this case, but the Court is of opinion that it must be presumed, at this distant period and without any proof to the contrary, that the moneys raised by the sale in 1795, and the mortgage granted in 1786, were rightly applied in discharge of mortgages and debts contracted by William Cowle, and which the trustees were bound to pay under the trust deed of 1778 ; and that, therefore, this bill ought to be dismissed, but without costs.
HEYWOOD, P.
DUMBELL for Pltif.; QUIRK,jun., for Deft.
Suit by petition, to have deft. ordered to join the petitioner in pulling down and re-building the boundary gable between their two houses, and to pay expenses.
Objected by deft., that it was not a proper time of the year to expose any Person’s house by pulling down the gable wall. That deft. could not obtain a house to move to, neither could he live in his own house exposed to the inclemency of the weather.
DUMBELL, in reply.—The law does not recognize any particular time for granting such orders, all that the law requires is to show that the wall is insufficient.
Order granted, but withheld fourteen days to give deft. time to get another house.
HEYWOOD, P.
BLUETT for Pltff. ; DUMBELL for Deft.
Suit to recover the amount of a bond and security, requiring six months notice.
At a former court the notice was denied, and the cause continued to prove it. This day a witness was examined, who swore that he saw the pltff. sign a written notice, of which the paper produced was a true copy made by the deponent, and he (the deponent) served the original upon the deft., and left it with him.
Objected, that no notice having been given to produce the original paper, no evidence could be given of its contents, and that the copy produced could not be read.
The Court held the objection good, but allowed the cause to be continued on payment of the costs of the day.
24th Dec., 1842.
The case was again brought on for hearing this day, when, upon the pltff. stating that he was prepared to prove the notice required, the deft. called T. B. Clucas, Esq., a witness summoned on his part ; and the witness not appearing, the deft’s. advocate moved for a presentment against the witness, and that the cause might be continued.
For pltff., it was objected, that no further continuance ought to be granted. The cause was continued until this day, for one express purpose, viz., to prove a notice, and, by the rule declared last court, all parties were bound by that continuance ; and, at any rate, if the Court should think otherwise, the deft. ought to make oath to the materiality of the witness, for although the cause had already been called on four courts, no witness had been charged until this day for the deft., and it was fair to infer the object was merely to to put off the cause beyond the coming vacation.
For deft., it was urged that the motions for continuance and presentment must both be granted, and there would be no infringement of the rule laid down last court. The deft. made no admission at any time, and may still use any fair ground of defence ; the deft. is not in court, and if he were, could not be required to give his oath as to the materiality of his witness, it not being the practice. It is sufficient that he shews to the Court that the witness is law-fully summoned.
Per Curiam.—The deft. is entitled to a continuance without any infringement of the rule " that parties are bound by the ground of continuance." This cause was continued for the pltff. to prove the notice to pay the money as required by the bond. The deft. is, therefore, excluded, by the terms of that continuance, from calling upon the pltff. to prove anything more than the notice ; all the rest of the case is admitted. But the deft. is not thereby excluded from making any defence by evidence on his part, and he now says that he has a witness to prove his defence, and shews the usual certificate of his having been law-fully charged. The witness is called, and does not appear, a presentment is, therefore, granted against him, and the cause must be continued.
HEYWOOD, D.
DUMBELL for Pltffs. ; Defts. in Person.
Suit to recover the rent of certain premises purchased by the deft. Callow on the 27th September, 1842, of which the deft. St. John was the tenant.
Philip Quayle had a life-interest only in a house on Taubman terrace. Callow bought his interest, by public auction, from the trustees, in August, 1842, but the deed of sale was not signed until 27th September, 1842, when, upon its delivery, the purchase money was paid.
The question raised was—what was the interest of the parties in the half-year’s rent, which became due on the 12th Nov. last?
The deft. Callow claimed the whole, upon the grounds, that he had purchased all Quayle’s interest in the premises ; and the rent not coming due until after the purchase made, he only could sue for it. It was not his fault the deed was not delivered and the purchase money paid on the day of sale. No doubt the vendors looked to him for the purchase money from the day of the sale by auction, and if Quayle had died between the time of sale and delivery of the deed, deft. would have been compelled to pay the purchase money.
For plnff. it was contended, that it always was the law here, that, unless by special agreement to the contrary, the purchaser was only entitled to the rents from the time of the purchase being compleated which was to be taken from the date of the deed of sale, when the money was paid by the purchaser.
Execution for the pltffs. for the rent up to to the time of paying the purchase money.
HEYWOOD, P.
HOWARD for Pltffs. ; DUMBELL for Deft.
Suit brought to recover £3 3s. 2d. the expenses of a gaslight-post alleged to have been knocked down and broken by the deft.’s cart, owing to the negligence of his servant.
Objected.—That by the High-road Act the owner of a cart was not liable for injury done by his servant, except in the simple matter of drawing on the wrong side of the way. The case of Overton v. Quayle, at Common Law, was settled in favour of the deft. upon this principle.
Per Curiam.—That only refers to the penal part of the law under the statute. This is a suit under the Common Law for compensation for an injury.
The case was then gone into and proved, and execution granted for the amount claimed.
CHANCERY COURT, 2nd March, 1843.
DUMBELL for Pltif. ; BLUETT fox Deft.
The pltff. took out an action against the deft., a native, to hold him to bail for payment of the sum of forty shillings ; and in the affidavit, upon which the action was grounded, the pltff. stated that he had been informed, by John Cain, of Douglas, and verily believed, the deft. was about to leave the Island.
The deft. now presented his petition to have the action quashed, upon the ground that the said John Cain never had given such in-formation to the pltff.
Cain was examined as a witness on the part of deft., and swore that he never told Lowe the deft. was going off the Island. He had heard deft. say, some months before, that he would go to America. Did not recollect whether or not he ever said, in Lowe’s house, that Cain was going off the Island.
For pltff., John Hunter was examined, who proved being in Lowe’s house when Cain said the deft. was going off the Island; and, shortly after, this action was taken out. There was not any one present but Lowe’s wife and the deponent.
Upon this evidence, DUMBELL, for petitioner, moved to have the action quashed, upon the ground that it was clear Lowe never had been informed by Cain that deft. was going off the Island, and the conversation proved by Hunter to have taken place with the deft’s. wife, when Lowe was absent, might have justified her in swearing an affidavit, but not the pltff.
Action dismissed, with 20s. costs.
TYNWALD COURT, 7th March, 1843.
BLUETT and STEPHEN for Pltff. ; Deft. in Person.
The petition in this case was brought against the deft., as trustee of the insolvent’s estate, to have an increased sum allowed him out of his church living, which had been sequestered for the payment of his debts.
It was objected, by deft., that none of the creditors were noticed to defend the petition.
Replied, for petitioner, that the trustee represented the whole of the creditors and their interests, and, therefore, it was not necessary to notice any one but him.
COURT MINUTE.—.In this case the Court sees no reason why the creditors, or any of them, should be noticed.
DEEMSTER’S COURT, 20th March, 1843.
HEYWOOD, P.
DUMBELL for Pltffs. ; HAINING for Deft.
Upon a charge for furious driving, it was proved that one Christian was driving, that the deft. was sitting on the box beside him; Christian’s whip was broken, and deft. was striking the near wheeler with a stick. They were often in a full swing trot, and sometimes some of the horses cantering going down Richmond-hill, deft. was kneeling on the foot-board and thrashing the near wheeler. The horses were galloping, the leaders were quite abroad, the wheelers sliding on their hind legs, and the coachman had no con-trol over them,
Objected, that this was not furious driving within the act, as Christian was the driver, and deft. only struck the horse at the desire of the driver.
Objection overruled and deft. fined.
Same day a suit was brought against Christian, the driver, for the same offence, at the same time, and he was also fined.
HEYWOOD, D.
BLUETT for Pltff ; DUMBELL fox Defts.
In this matter a question arose whether the widow or the administrator of John Cowley deceased, a late member of the club, was entitled to £10, alleged to be due by the club for the funeral money allowed by the rules upon the decease of every member.
The claim was resisted by the club principally upon the ground that the deceased had committed suicide ; which, by the rules of the club, debarred the representative from recovering anything. They also pleaded, that, supposing the money to be due, both the widow and the administrator claimed it, and the club could not decide which was entitled to it.
Evidence was given to shew that the club had waived the rule as to " suicide" in the case of the wife of Thomas Cannell, a deceased member. It was also proved, that the widow had, in this case, ordered the funeral ; that part of the expenses had been recovered by the undertaker from the administrator, and the widow had been compelled to pay him the remainder.
The Court took time to consider of the case ; and, having. advised with the other judges, the Deemster this day decided that the administrator was entitled to the funeral money, and not the widow. Execution was accordingly granted against the club in favour of the administrator, for the sum of £10.
READY, G.
KELLY for Pltif. ; ATTORNEY-GENERAL and DUMBELL for Deft.
This was an application, by petition, to have a fine remitted in a case where a jury had been convened and had presented the petitioner and several other persons for cutting turf on the Abbey’ turbery of Malew. It was alleged that the petitioner was not guilty of the offence, and in fact was out of the Island at the time; but another man of the same name had cut turf, and had admitted the fact before the jury.
Objected.—That the jury having found the fact of trespass, this court could not review their verdict. The present petitioner was summoned to court before the Deemster when the presentment was delivered into court, and ought then to have traversed the finding of the jury if he was dissatisfied with it.
KELLY, for petitioner.—It is not the verdict we find fault with, but that the petitioner is not the individual who committed the trespass.
The Court held the matter over for consideration, and on the 20th May, 1843, ex parte affidavits were produced by the petitioner and the fine was remitted.
4th May, 1843.
READY, G.
GELLING for Pltff. ; DUMBELL and QUAYLE for Deft.
This was an application, by petition, to quash an action in Chancery, which had been sued out upon an affidavit sworn to by Margaret Radcliffe, upon information alleged to have been given to her by Isabella Harrison.
Isabella Harrison was examined by the petitioner, and denied having given the information stated in the affidavit.
The pltff. then moved to examine Margaret Radcliffe who made the affidavit;
But it was objected to by the petitioner, upon the ground that she had already made her affidavit, in writing, and ought not to be allowed to add to, or explain it.
Upon the part of the pltff., it was alleged, that Margaret Radcliffe was a mere agent of the pltff’s., had no personal interest in the suit, and ought to be examined to confront the witness Harrison, and to prove all that passed between her and Margaret Radcliffe, as well as between her and the High Bailiff, as the affidavit did not state more than what was barely necessary to support the action, although a very great deal more might have been said at the time.
The Court refused to allow her to be examined.
The pltff. then moved to be allowed to call witnesses to shew declarations previously made by the petitioner of his intention to quit the Island.
But upon behalf of the deft., it was objected that no evidence could be given, except as to the statements in the affidavit, as it was upon that alone the action had been issued.
The Court held the objection good, and refused to allow any evidence to be given except as to the affidavit.
The action was dismissed.
DEEMSTER’S COURT, 22nd May, 1843.
DUMBELL for Phil. ; BLUETT for Deft.
This was an application to have the deft, fined for not having sent a man to the high-roads after notice duly given.
Objected.—That the deft, was merely a labourer on the estate of Balladoole, and, therefore, not liable to pay or perform high-road labour.
It was proved in evidence that the deft. was under-gardener on the estate of Balladoole, receiving weekly wages, and occupying a cottage and croft, the rent of which was £14, paid out of his wages. That many other labourers on the estate, occupied crofts and cottages in like manner, the rent of which was paid out of their wages. The deft. could not leave his master’s service for an hour without leave, and might be turned off at a week’s notice for misconduct. The deft’s. family worked the field, and occasionally the deft. hired a man to assist them, and worked himself after hours.
Held that this case differed from Maddrel’s. There the cottage was part of the labourer’s wages, for which he paid no rent, and could be ejected on leaving the service of his master ; but in this case the deft. paid a distinct yearly rent—might crop the land, and, of course could not be deprived of his crop, be ejected out of the lands, or turned out of his house until the year was ended, although he might quit his master’s employ, or be turned off at any period of the year ; he might have farmed any other lands in the same way. The fact of the lands being a part of his master’s estate, made no difference, and his being in the situation of a servant, was no ground of exemption, if he farmed lands beside.
The notice being admitted, deft. was fined 4s. 6d., with costs.
29th May, 1843.
HEYWOOD, P.
DUMBELL for Pltff.; FLEETWOOD for Deft.
To have deft. fined for not sending a man to the high-roads deft. occupying a house in the village.
Defence.’—That the house deft. occupied was only part of that in which his grandfather lived.
It was proved that the premises were all under one roof. That the deft. occupied the back part of the premises, and his grandfather the front, there being a passage running from the front right through to the back door. There was only one back door to the house. The occupier of the front house went through the back to the yard, and the occupiers of the back house through the front to the street, occasionally. It was proved also by. a witness, that, about five years ago, the back house was occupied, separately, by a stranger to the family ; there was then a door between the two houses, and the witness’s bed was always against the door, so that it was not, and could not be opened. That — Skillicorn, sen., had performed the labour in respect of one house, and his grandson, the deft., had been permitted to occupy the back part of the house upon sufferance, and paid no rent whatever. They joined in their meals as one family, and sometimes cooked in the one kitchen, and sometimes in the other. The house was built by deponent all under one roof; and all at the same time. He never received rent for any part of it.The door-way was then open as it had been from the first.
Held, by the Court, that the occupation, under the existing circumstances, by members of the same family, with no division between them, and no rent paid, did not constitute separate occupation. It would have been different if the suit had been brought when the premises were really separately occupied, the door closed up, and the occupier’s bed against it.
Suit dismissed without costs, Court being of opinion it was not an improper case for the Overseer to try.
COMMON LAW, 4th July, 1843.
QUAYLE and MOORE for Pltif.; DUMBELL for Defts.
Summons not being effected in time, pltff. moved for a continuance to be entered on the court minutes.
Pltif. proved that he had summoned deft. Lowrey in time, but the Lockman not having found deft. Gelling at home, after calling more than once, did not summon deft. Parsons, and pltff. argued that he had used due diligence, by putting the warrant in the hands of the officer, and was not answerable for his neglect.
The Coroner was examined, and proved, that he received no fees with the warrant ; that he was taken ill, and gave the warrant to the Lockman, who asked for the fees. Deponent said he had not received any, and the Lockman then said he did not know whether he would make the summons or not, as he would not ad-vance the wages to the court witnesses as required.
Objected.—That this evidence was not sufficient. If the officer does not use due diligence, he is answerable to the pltff., but the deft. is not to be kept in law continually because the officer does not do his duty.
Per Curiam.—It is not necessary to decide any point but one. The pltff. not having given the fees required with the warrant, has, in that respect, failed to use due diligence, and is not, therefore, entitled to have the cause continued.
25th Oct., 1843.
CORLETT, V. G.
CRAIGIE for Pltff. ; DUMBELL for Deft.
On the 28th February, 1840, probate of the will of John Tupper, deceased, was granted to the deft., and he gave bails, J. J. Luyken and Edward Forbes. These bails had subsequently become insolvent, and both had left the Island.
A very large claim had since been made against the deft. in his own private capacity, and also as executor of the said John Tupper, deceased. In consequence of this claim, his duty as trustee and executor was decidedly opposed to his own private interest, and as the two bails had now left the Island, and were insolvent, it was important some other person should represent the estate, and the interest of the widow and children, for whose benefit alone the deft. was executor in trust.
DUMBELL.—The deft. has no personal interest whatever in this application, and will leave the Court to deal with it as it pleases; but he refuses to give any new security. The question is a very serious one for the Court to entertain, and the precedent, if set upon this application, might involve the Court in endless trouble.
Per Curiam.—It would require a very strong case to induce the Court to interfere in the manner requested. But if good cause were shewn, I do not say the Court could not supply a remedy. There is not, at present, enough before the Court to enable it to form a judgment. The petitioner has, however, shewn a prima facie case, and may take a continuance of her petition to mend her case, and bring it before the Court again if she be so advised.
5th Nov., 1848.
HEYWOOD, D.
DUMBELL for Pltff.
Upon this cause being called, a doctor’s certificate was handed in, stating " that the deft. had been ill for many months, and was so still."
DUMBELL objected, that the certificate was insufficient ; many a man might be ill, but not unable to go about or attend court.
Per Curiam—The doctor’s certificate is insufficient. It must always state the nature of the complaint, and that the deft. is unable to attend the court in consequence of it ; unless the deft. can produce a certificate to this effect, the pltff. is entitled to a presentment.
6th Nov., 1848.
HEYWOOD, D.
GELLING and JEFYCOTT for Pltffs. ; DUMBELL for Deft.
This was an application to have the deft. fined for hawking, without a license, goods and wares, not the produce or manufacture of this Island.
DUMBELL, for deft., objected, that the person who had been arrested and held to bail, and was now summoned for the offence, was not William or James Murton, but John Boyd, and that the application must, therefore, be dismissed with costs.
GELLING and JEFFCOTT, for pltffs., alleged, that the deft. had passed by the name of Murton,
And witnesses were called, but failed to prove that fact. The pltff., thereupon, moved to be allowed to amend the petition with the real name of the deft., as they could easily prove that he was the real person who had committed the offence.
The Court refused to allow the petition to be amended, and dismissed the suit with costs.
HARTWELL, V. G.
DUMBELL and FLEETWOOD for Pltff. ; KINLEY and CRAIGIE for Defts.
Upon petition for a rehearing, it was stated, for the petitioner, that some of his witnesses resided out of the Island, and that he required a commission to examine those witnesses in England.
Defts. objected, that the petitioner had not summoned all the witnesses in the cause ; one of them, Matthias Cain, not being in court, although examined before, and the rule had always been held to be imperative.
For petitioner.—The rule is no doubt correctly stated, if we were seeking now for a rehearing. This motion is a matter of course to obtain a commission, and the viva-voce evidence cannot be taken until the commission is returned. All that can be required is, that the Court should be satisfied there is ground for the commission, and the pltff. is ready to make affidavit to that fact.
The defts. objected to the pltff. being sworn.
The Court overruled the objection ; and the pltff. being sworn, stated that he had witnesses residing in Whitehaven, and that he could not safely go to tral without their evidence, The Court then granted a commission to examine the witnesses in Whitehaven, and continued the cause until its return.
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