[from Advocate's Notebook, 1847]

1st July, 1812.
CRELLIN, D.

WM. CORRIN v. WM. GAWNE.

This was a petition, addressed to Deemster Crellin, stating, that the petitioner was then a prisoner in Castle Rushen, under his Honour's order, for refusing to deliver possession of a certain house and concerns in Castletown, as ordered by a judgment in favour of Edward Gawne, Esq., against the petitioner and two others, and the petition stated that the petitioner was now willing to deliver possession of the said premises.

1st July, 1812.

Upon a hearing this day, the Deemster ordered "that the petitioner be released from imprisonment, under the order therein mentioned, upon his entering into a bond in the Rolls' Office, with two sufficient sureties, in the sum of Ten Pounds, that he will, upon his release, send for the Coroner of Rushen Sheading, and deliver unto him possession of the premises mentioned in an order, or judgment, wherein Edward Gawne, Esq., was the pltff:, and the petitioner, and William Kelly, and John Kennish were the defts., and dated June 18th, 1812, agreeable to the terms of such order. Given at Castletown, this 1st day of July, 1812."

"J. F. CRELLIN."

24th Oct., 1812.
CRELLIN, D.

BENJAMIN HUGHES v. WILLIAM HANNAH and ROBERT TAGGART, his Bail.

The pltff had taken out an action of arrest against the deft., William Hannah for the sum of £53 7s. 1d. The deft. Taggart became bail to the action, which was subsequently, according to due form of law, transmitted to be heard and determined in the proper court of law,

24th Oct., 1812.

This day the deft., by petition, brought on the suit before Deemster Crellin, making both the principal and bail parties defts., and, upon a hearing, the Deemster granted his execution against the deft. Hannah for the sum claimed, with £2 10s. costs and, in his default, Robert Taggart his bail to pay and discharge the same.

22nd Jan., 1813.
CRELLIN, D.

THOS. GAWNE v. THOS. CRELLIN.

The pltff in this case presented his petition, as High Bailiff of Douglas, stating, that the deft. had lately thought proper to encroach upon and erect a certain wall and building, at or near the north end of a street in the said town, called Fort-street, and had shut up and encroached upon the opening or passage from the said street to the sand to the great injury and annoyance of the inhabitants of the said town; and petitioner prayed, that the said Thomas Crellin might be ordered to remove the said erection, and pay costs.

22nd Jan., 1813.

Upon a hearing this day the Court made the following judgment :-

" It appears there was an open space at the end of the street, in this petition mentioned, which has been occupied by the public as a road leading from the said street to the sand for forty years past, and that the deft. has lately encroached thereon, and obstructed the public in the use and occupation thereof; ordered therefore that the deft. do forthwith remove the said encroachment, and suffer and permit the public to use and occupy the same, as a right of way, as heretofore accustomed, without prejudice to the deft. in ascertaining his right in and to the said space of ground as he may be advised, and the deft. to pay the petitioner 12s. 3d. costs."

27th April, 1813.
CRELLIN, D.

EDWARD MOORE v. JAMES MOORE and - SHIMMIN.

The petition in this matter stated, " that the petitioner is the eldest son and heir-at-law of Thomas Moore, of Ballacallin, in Kirk Patrick, who died 27th January, 1810, leaving his son James Moore and his daughter Jane, wife of William Shimmin, executors of his will. At the time of his decease, a part of Ballacallin was let to Thomas Corlett for £6 per annum. That Margaret Moore, the widow and second wife of Thomas Moore, is entitled thereout to twelve shillings, being one moiety of the proportion up to the death of the said Thomas Moore, and to £1 4s. 0d., being one quarter of the said rent, from the day of the death, to the 12th Nov. following.That the said executors, the defts., are entitled to the other moiety of the said rent, viz., twelve shillings, up to the day of the said Thomas Moore's decease, and petitioner conceives he is en-titled to the remainder of the said rent, viz., £3 12s. 0d. That the said tenant refuses to pay the petitioner, under pretence that the said executors claim a part of it ; whereas petitioner charges that they have already received all that they are entitled to, viz., the crops which grew on those parts of the said estate which were occupied by the deceased up to the time of his decease, and the rent up to the day of his death."

27th April, 1813.

Upon a hearing, the Court granted execution against the said tenants, for the sum of £3 12s. 0d., in favour of the petitioner, as prayed for, with ten shillings costs.

J. F. CRELLIN.

Lib. SCAC., 6th May, 1813.
SMELT, G.

NORRIS MOORE, Second Deemster, v. PHILIP CALLOW and OTHERS.

The petition in this matter was signed by the Deemster himself; and stated, that petitioner did, some time ago, present his petition to his Grace, the most noble John, Duke of Athol, Governor-in-Chief of this Isle, stating, that your petitioner had removed with his family, from the town of Douglas to Ramsey, for the convenience and advantage of the public. That the house wherein your petitioner resided in Ramsey aforesaid, was too small for the accommodation of his family, and, therefore, required an addition to be made thereto. That out-offices were also wanted, and several other buildings, and that the only quarry wherein your petitioner could get stone, with advantage, for the purpose aforesaid, was in Claughbane, belonging to Philip Callow, of Liverpool, merchant, but now in the actual possession of Elizabeth Callow, Ellen Callow, and Mary Killey, widow, the sisters of the said Philip Callow, and praying that your petitioner might be allowed to dig, raise, and carry away stones from the said quarry, for the purpose aforesaid, upon paying such moderate and reasonable satisfaction for the same, as his Grace, in his discretion, should think fit to order and allow. That the said petition came on to be heard before his Grace, at a court, holden at Castle Rushen, on the 5th day of February last past, and the same was continued on the ground that the said Philip Callow was shortly expected in this Island. That subsequent to the bringing and hearing of the said petition, the said Elizabeth Callow, Ellen Callow, and Mary Killey, some or one of them, have or hath put up an iron chain across the road leading to the said quarry and have or hath locked up the said road.

The petition then prayed that the petitioner might be allowed to take stones, upon making reasonable satisfaction, as in the petition stated, and that the obstruction complained of might be removed.

6th May, 1813.

The Court made the following order :-

"This Court is of opinion, and doth accordingly order and adjudge, that the petitioner be entitled to dig, raise, and quarry what stones he may have occasion for in the quarry in the said petition mentioned, and to carry, lead, or draw the same, upon the way or road in the said petition also mentioned. And that the Coroner of Ayre Sheading do forthwith remove all and every obstruction upon the said road, reserving the question of com-pensation for such damages as the petitioner shall commit in the premises, for the future consideration of this Court."

" C. SMELT."

2nd July, 1814.
CRELLIN, D.

P. QUIRK, by his Guardians, v. JOHN PROCTOR.

LLEWELLYN for Pltff.

The petition in this matter was in the following words : " That your petitioner did, on the 15th of June, instant, obtain your Honour's execution against John Proctor, of the parish of Malew, for the sum of £83 13s. 8d., British, with £1 8s. 7d. costs, being the balance of land rent due, as stated, by the said John Proctor, for part of the estate of Scarlet, after deducting a certain account, produced by the said John Proctor, in part discharge of the rent payable by him. That by the terms of the execution aforesaid, your petitioner is allowed to investigate the justice of the said account produced by the said John Proctor, for lime, sand, masons' work, and carting of mortar, the charges for which are exorbitant and unjust. Your petitioner therefore humbly prays a hearing of this petition, and that your Honour may be pleased to order a jury of masons to view the said work, and report in writing whether the - charges in the said account for lime, sand, masons' work, and carting of mortar, as aforesaid, are fair and just, or how otherwise, and that the said John Proctor may be ordered to produce receipts for the different other items charged in the said account, and your petitioner will pray, &c."

"JOHN LLEWELLYN, for the Petitioner." 25th June, 1814. The DEEMSTER, upon a hearing, made the following order:-

"That the Coroner of Rushen do summon four good and lawful men, of the Sheading of Rushen, of the profession of stone masons, to appear before me, at Castle Rushen, on Saturday next, to be sworn as a jury, to examine the accounts produced by the deft., against the petitioner, for lime, sand, masons' work, and carting of mortar for the hedge or fence in this petition mentioned, and report, in writing, whether the same are just and reasonable, or how otherwise, whereof the said jurors and all proper parties and persons concerned to have due notice."

" J. F. CRELLIN."

" To the Coroner of Rushen Sheading, and others, whom it may concern."

2nd July, 1814.

The following order was made:-

"Ross M'Kissack, Stanley Colquit, Matthew Caveen, and William Kelly, of Castletown, stone masons, having been sworn in court this day, as a jury to examine and view the hedge, or fence, in this petition mentioned, and also the accounts produced by the deft. against the petitioner, for lime, sand, masons' work, and carting of mortar, and report whether the said hedge, or fence, is done in a sufficient and workmanlike manner, and the several accounts are just and reasonable, or how otherwise, whereof the said jurors (who are authorised and empowered to administer oaths to parties and witnesses as occasion may require) and all other proper parties and persons concerned to have due notice."

"J. F. CRELLIN.."

" To the Coroner of Rushen, or whom this may concern."

Lib. SCAC., 4th July, 1816.
SMELT, G.

THOS. KAIGHIN v. WILLIAM MORRISON. QUIRK for Pltff.

The petition in this cause stated in substance, that petitioner obtained his execution against the deft. Morrison on 31st August, 1814, for 924 4s. 8d., with thirty shillings costs. That the deft. denied pawn on the execution, and, upon the Coroner's certificate thereof, a writ of contempt was issued against him, under which he was imprisoned in Castle Rushen. That in order to effect his liberation, the defts. William Halsall and Robert Taggart entered into bond with him in the Rolls' Office, that, immediately upon his release, he should send for and deliver to the Lockman of German, good and sufficient pawn to satisfy the amount of the said execution and costs. That the said deft. having failed to deliver the said pawn, was, upon special application of the petitioner again remanded to gaol for his contempt, there to remain until he had paid the said debt. That the said deft. remained in gaol, but did not shew any disposition to pay the said debt ; wherefore the petitioner submitted that the other defts., as bail for the said Morrison, were responsible for the said debt and all costs, his imprisonment notwithstanding; and the petitioner prayed for execution against them accordingly.

1st Aug., 1816.

The Court made the following judgment:-" This Court is of opinion that the amount of the aforesaid execution, dated the 31st Aug., 1814, and also the costs awarded against the deft. Morrison, in and by the said judgment of the 13th Jan., 1816, and the costs of this application, to be taxed, ought to be levied, in the first instance, from out of and against the property and effects of the deft. Morrison, notwithstanding his imprisonment; and, in default of property of the deft. Morrison, that then, and in that case, the defts. Halsall and Taggart shall and do pay and discharge the same respectively."

" C. SMELT."

9th Aug., 1816.
CRELLIN and GAWNE, Ds.

ROBERT KEWLEY v. THOMAS CAIN.

LLEWELLYN for Pltff.

The petition in this matter stated, that Robt. Kewley, the petitioner's father, had, by deed, dated 11th April, 1706, settled the estate of Ballachrink, upon his son, John Kewley, and his heirs, to be possessed upon his or their attaining the age of twenty-one years. That the said John Kewley died under age, and the petitioner became his heir; and, having come of age in Dec., 1815, entered into and possessed the said lands. That the deft. was tenant, under a letting from the said Robt. Kewley, of two fields, part of the said granted premises, and legal notice was duly served upon him to quit the said premises on the 12th Nov.,. which, when the time had arrived, he accordingly did, and the petitioner entered into possession thereof, and put his cattle to graze there; but the deft. had lately instituted a Jury of Inquiry respecting the alleged trespass, and the jury, without going into the petitioner's right to the said premises, had awarded enormous damages. The petitioner then prayed to have the verdict of the jury quashed and set aside, and for costs.

Upon a bearing before Thomas Gawne, Esq., (then Deemster), he made the following judgment :-

"It is hereby ordered that the jury's verdict in this petition mentioned, obtained by the deft. Thomas Cain against the petitioner Robert Kewley, bearing date the 20th May, 1816, be vacated and set aside ; but without prejudice to the said deft. in seeking redress against the petitioner, or Robert Kewley, his father, as the deft. may be advised."

" THOS. GAWNE."

HOUSE of KEYS,
13th Aug., 1816.

M'COOIE v. CAIN.

"This cause having come on to be heard upon the petition of the respndt., and it appearing that the said applnt. had left this Island sometime after the traverse had been entered from the verdict in this cause, and has not returned thereto, and it also appearing that summons had been left at the. last place of abode of the applnt. in this Island, and also with John Halsall, a principal creditor of the applnt., this House is of opinion that the verdict traversed or appealed from, and bearing date, the 7th July, 1813, ought to be affirmed, and this appeal dismissed, with costs, for want of prosecution . and the same is herebyordered and adjudged accordingly."

9th June, 1817.
Moore, D.

DANIEL LACE, Coroner, v. JOHN CHRISTIAN and OTHERS.

The petitioner in this matter complained, that he held several executions in his hands, as Coroner of Ayre Sheading, to enforce against the deft. William Christian.That pawn had been taken, and goods appraised in the usual form of law, and when about to remove certain cattle which had been appraised, the deft., aided by his son, the other deft., rescued the said cattle with great force and violence, and threatened the petitioner with bodily violence ; and the petitioner prayed that they might be dealt with according to law, for interrupting him in the execution of his duty.

10th June, 1817.

Upon a hearing the DEEMSTER made the following judgment:-

" It appears that the deft., John Christian, menaced, and violently and forcibly obstructed the petitioner, Daniel Lace, in the due execution of his duty. The said deft., John Christian, is therefore fined in the sum of £3, and he is hereby ordered to be apprehended and imprisoned in Castle Rushen, until he enters into bond, with two sufficient sureties, in the sum of £50, to and for the use of our Sovereign Lord the King, that he will not, in future, obstruct the petitioner in the due execution of his duty, and, before releasement, that he pay the said fine, with £1 4s. 6d. costs."

"NORRIS MOORE."

"To the Chief Constable of Ramsey, and others whom it may concern."

6th Dec., 1817.
SMELT, G.

JOHN KNEALE v. JAMES KEWIN.

This petition stated, that James Kewin was imprisoned in Castle Rushen, at the suit of the pltff., for having refused pawn under an execution at the suit of the petitioner, granted by the Hon. Deemster Moore, for the sum of £11 4s. 0d., with fees, being for land rent due the pltff. the 12th Nov., 1816. And the petitioner prayed that the Coroner of Ayre Sheading might be ordered forthwith to proceed and sell, by public auction, the effects of the said James Kewin, or a sufficiency thereof to discharge the amount of the execution, notwithstanding the imprisonment of the deft.

At an adjourned court, holden at Castle Rushen, 6th Dec., 1817, the Court made the following judgment:-

" It appearing to this Court that the deft. is indebted to the petitioner in the said sum of £11 4s. 0d., and 1s. 3d. fees, it is, therefore, hereby ordered and decreed, that the said deft. do forthwith pay unto the petitioner the said several sums, and the costs of this application, to be taxed ; otherwise that the same be respectively levied from out of, and against the property and effects of the said deft., notwithstanding his imprisonment for contempt."

" C. SMELT."

19th Nov., 1818.
GAWNE, D.

JOHN CANNON v. MARGARET CANNON.

John Cannon, Sen., the grandfather of the petitioner, was entitled to the estate of Ballanow, in the parish of Michael. He died, leaving a widow, Isabella, and John, the second, the pltff's. father, his heir-at-law. The pltff's. father then possessed one-half of the estate, and his mother held the other half as widow. John, the second, married Margaret Quayle the deft., by whom he had issue the pltff:, and died before them both, his own mother also surviving. Isabella Cannon, the first widow, granted a lease of her half of the premises to the pltff. and deft. for her life, and then died leaving them in possession of the whole estate, when the present question was raised by petition before the Deemster.

The pltff contending that, because his father, John the second, never possessed more than one-half the estate on account of Isabella, the first widow, surviving him, the pltff's. mother could only be entitled to dower of those lands actually in her husband's possession at the time of his death ; and, therefore, she had only a right to possess one quarter of the said estate.

On the other hand it was contended, for the deft., that, upon the death of John the first, there being no settlement, her husband, as heir-at-law, became absolutely entitled to the fee simple of the whole estate, subject only to the widow right of Isabella ; and, therefore, as the whole estate then vested in him, the deft., as his widow, was entitled to her dower therein, and to possess one-half of the said estate for life or viduity.

19th Nov., 1818.

The cause was heard upon the merits before Deemster Gawne, who made the following judgment:-

"I am of opinion that the deft. Margaret Cannon, as the widow or relict of John Cannon, deceased, the petitioner's father, is entitled to a right of dower of one-half or moiety of the said estate of Ballanow, in the petition mentioned: ordered, therefore, that the Setting Quest of Michael Sheading do appear on the premises, and make a fair and equal division of the said estate between the parties, and if there be two dwelling houses on the same, that the said Setting Quest do allot the first, or best dwelling house to the petitioner as heir-at-law, and the second best dwelling house to the deft. as the widow, according to law, whereof all parties to have due notice."

"T. GAWNE."

27th Nov., 1820.
GAWNE, D.

MARGARET CLUCAS, Widow, v. T. CLUCAS, by his Guardians.

GELLING for Pltff.

John Clucas being possessed of the estate of the Garth, by inheritance, died, leaving Rebecca, his widow, him surviving, and Thomas Clucas, his son, and heir-at-law. Thomas Clucas married, and had issue the deft. and others. His first wife died, and he married the petitioner, Margaret Stephen. Thomas Clucas died, leaving the petitioner, his widow, and the deft., his son and heir by the first wife, and his mother Rebecca, him surviving.

On the 1st of January, 1816, upon application by the petitioner, Deemster Crellin awarded her a widow right of one-fourth part of the estate ; but, upon a rehearing before Deemster Gawne, on the 29th July, 1816, (Deemster Crellin having died in the meanwhile) he adjudged, that the said Rebecca, who was still living, was entitled to one-half the said estate, by way of dower ; and that the first wife of the petitioner's husband having died, leaving issue, the petitioner, as his second wife, was not, at that time, entitled to more than one-eighth of the said estate.

In February, 1820, the said Rebecca died, and the petitioner now claimed to be entitled to a widow right in one-half of the said lands of the Garth, upon the ground, that there was now no other widow to claim upon the said estate.

27th Nov., 1820.

The DEEMSTER, by his judgment, gave her the one-quarter only as the second wife of the said Thomas Clucas, deceased.

NOTE.-Lib. Scac., 1596-" Should a man marry a second wife, having issue by the first, such second wife should enjoy, after his decease, only one-fourth part of his estate of inheritance, during her widow hood; but if there is no issue living of the first wife, the second shall be entitled to a moiety.

22nd July, 1822.
GAWNE, D.

DANIEL QUARK v. JOHN COLLISTER.

The petitioner in this matter stated, that the pltff , on 23rd February, 1818, obtained execution against William Kennaugh for £7 10s., land rent, due the 12th February previous, with 7s. 1d. costs. That the execution was duly enforced by Matthias Curphey, Lockman of Braddan, who immediately arrested in the hands of John Collister, then Coroner of Middle, a sufficiency of effects to discharge the amount of the said execution, which was of a preferable nature. And the petitioner prayed an execution against the deft. Collister for the said sum of £7 3s. 0d., with costs, or that he might skew cause to the contrary.

Upon a hearing, the DEEMSTER made the following judgment

" It is ordered that the deft., John Collister, do forthwith, after service of this rule, furnish the petitioner with a full, true, and perfect account, in writing, of his proceedings under the executions placed in his hands, to be enforced against William Kennaugh, at the time of laying on the arrest in this petition mentioned, and also of all sum or sums of money then in his hands, the property of the said William Kennaugh. That in the meantime this petition do stand continued."

"T. GAWNE."

June, 1823.
CHRISTIAN, D.

QUAYLE v. CLAGUE.

ROPER for Pltff. ; KELLY for Deft.

The pltff: having, some time ago, placed in the deft's. hands, who was a Coroner, an execution to a large amount, against one Taggart. Clague (the deft.) accordingly proceeded in the due course, and appraised and sold such property of Taggart as he could find, with the exception of a stack of turf, and some other trifles. The proceeds of the sale were duly paid over by deft. to pttff., but a balance of £200 was still left due on the execution. Subsequently, more property of Taggart's had been found by other officers, and had been sold to discharge other executions against him. The pltff, therefore, contended, that deft., having neglected to sell all Taggart's property, was liable to him for the balance still due on the execution, since it was fairly to be presumed, that, if he had used proper diligence, he was as capable of finding the property as any other officer, and prayed an order against him.

Deft. contended, that pltff had no right to an order against him for the balance, because pltff. (during the time the execution was in deft's. bands) had, without his concurrence, made a private agreement with Taggart, to take part of his property at a valuation, in part payment of the execution, and pltff had also, by agreement with Taggart, taken a note from Miss Quayle, for a debt due by her to Taggart. The deft. contended further, that the moment the execution was placed in his hands, pltff had no right to look to any one but him for the amount, and that, therefore, his private agreement with Taggart was an improper interference - had broken the execution -and released the Coroner from all further responsibility.

Per Curiam.-The pltff., by making a private arrangement with Taggart, unknown to the deft., has improperly interfered, and thereby annulled his claim on the Coroner. The petition is, therefore, dismissed with costs.

June, 1823.
CHRISTIAN, D.

CAINE v. BRIDSON.

KELLY for Pltff.; HARRISON for Deft.

A suit brought to recover the price of a horse purchased some years ago.

On a former trial, for the same debt, the deft. had pleaded the Statute of Limitations; but, after gaining his cause upon that plea, did, out of court, in the presence of witnesses acknowledge the debt to be justly due, and promised to pay it if time was allowed him. Eighteen months had since elapsed, and the debt not being yet paid pltff. brought this action to recover the amount.

Deft. again pleaded the statute.

Per Curiam.-Deft. having acknowledged the debt after pleading the statute, and promised to pay if time was allowed him, has thereby renewed the debt.

Execution awarded against deft.

NOTE.-Since the year 1835 such a promise must be made in writing.-See Jeffcott, page 63.

12th June, 1823.
CHRISTIAN, D.

M'CRONE (as Proctor for the Lord Bishop) v. D. F. WILSON.

QUIRK, H.B., for Pltff.; GELLING for Deft.

To recover a certain sum of money due for tithes by one Johnstone; who had been a tenant of the deft. Wilson, but had left the Island in debt.

QUIRK, for pltff., proved that Johnstone rented land from Wilson, the deft., and had made an agreement with the pltff to pay a certain sum for the tithe.Johnstone left the Island without paying the sum agreed upon ; but, previously thereto, made over the whole of his stock and crop to Wilson, for payment of the rent due. Wilson, the deft., sold the property so made over to him for rather more than the sum due for rent; therefore, as Wilson, had received the entire produce of the sale of the stock and crop out of which the tithe ought to have been paid, he had made himself amenable for the tithe due out of the same, and pltff. was, therefore, entitled to an execution in preference.

GELLING admitted, for deft., that he had sold more of the stock and crop than was sufficient to discharge the amount of rent due, and that a balance was then in deft's. hands for the benefit of his creditors ; but, he contended, that the pltff. had no right, in this case, to a preference over any other creditor of the absentee Johnstone. The pltff. had agreed to take a certain sum in lieu of tithe, which sum then became, of course, a simple contract debt, and the crop was released from the tithe. If, therefore, under such an agreement the pltff could not draw his tithe in kind from the same crop, neither could he claim a tenth part of what it might fetch when sold.It was, therefore, quite clear that the pltff. having leased the tithe, could only be considered as a common creditor, and not entitled to any preference.

Per Curiam.-If a party entitled to tithes agrees to take a sum of money in lieu thereof, he changes the nature of his claim, and in the event of the tithe payer's insolvency, can only rank with the general creditor.

Dismissed.

23rd June, 1822.
CHRISTIAN, D.

JEFFERSON v. CRETNEY.

ROPER for Pltff; QUIRK, jun., for Deft.

This was a suit to decide the right which one execution had to a preference over another of a subsequent date, under the following circumstances :-

The pltff. obtained an execution against one Christian during his life, which was placed in the Coroner's hands, and pawn taken upon it. It was afterwards withdrawn from the Coroner without the amount having been recovered. One Gell also obtained an execution against Christian, but of a later date than the pltff's., and he put it into the Coroner's hands subsequent to the death of Christian. A few days after which pltff. replaced his execution in the Coroner's hands, having learned that, by some means, Gell, after the death of Christian, had discovered and .arrested some property of his (the present deft's.), and the pltff. contended that his execution, bearing a prior date to Gell's, and pawn having been delivered upon it, ought to have a preference over Gell's.

QUIRK, jun., who appeared for Gell, contended that pltff had no right to any preference, because, having withdrawn his execution, he had given up his privilege, and it would be a hard case if Gell should lose the benefit of his diligence, by which alone the property had been discovered.

Per Curiam.-Pltff. having withdrawn his execution from the Coroner's hands, though he had given back the same one to him again, yet it could take date only from the time of its being re-placed.

23rd June, 1823.
CHRISTIAN, D.

NORRIS CLAGUE v. HUGH QUIRK.

KELLY for Pltff.; KINLEY for Deft.

This matter coming on to be heard, it appeared that the wrong party had been summoned (owing to two men of the name of Hugh Quirk living in the same village), and the party summoned, appearing in court by his advocate, claimed costs as soon as he discovered the mistake.

KELLY, for pltff., contended that deft. was not entitled to costs, because he must have known there was no dispute between the pltff. and him, and his employing an advocate was quite unnecessary, because his own appearance would have been sufficient to rectify the mistake at once; more especially as he knew he had a name-sake in the village.

KINLEY, for deft., stated, that he did not know whether there was any unsettled account or not between the pltff. and him, as they had had dealings, and, for fear of the worst, he had employed an advocate, as it was extremely inconvenient to leave his farm at this busy time. He had been charged to court by the pltff, he appeared by his advocate, and the pltff. had nothing to bring against him. These were the facts before the Court, and which left it no discretion, since it was quite clear the deft. bad no right to be put to expense by the pltff's. blunders.

Per Curiam.-Costs must be awarded to deft. for having been brought into court unnecessarily.

23rd June, 1823.
CHRISTIAN, D.

CREER v. MYLREA.

GENESTE for Pltff. ; STEPHEN for Deft.

To recover one-half of a certain property, being quarterland, alleged to have been improperly left by will a second time. GENESTE, for pltff, stated, that the pltff. was next of kin and heir-at-law to - Cottier, a widow, deceased, and that her husband, also deceased, was illegitimate. Cottier and his wife, during their lifetime, acquired a certain property, by purchase, and they executed a joint will and testament, leaving the whole of their property to the survivor of them. The husband died without issue, and Mrs. Cottier, under the husband's will, possessed the whole of the property. Cottier, the widow, then died, having first executed her last will and testament, whereby she bequeathed the whole property to Mylrea, the deft. to the present suit. By the law of the land, quarterland, once devised by will, becomes an estate of inheritance, and cannot be devised a second time by will ; therefore, the one-half of the said property which the widow Cottier possessed by her husband's will, she could not again devise ; but it must, as a matter of course, descend to the right heir-at-law. Cottier, the husband, being illegitimate, and having died without issue, of course, had neither relations nor heirs, and, therefore, the ptff, as heir-at-law to the deceased widow, is clearly entitled to that portion of the property left her by her husband.

Per Curiam.-The pltff, as heir-at-law to the deceased widow, is entitled to that half of the property which deceased had taken under her husband's will as an estate of inheritance. Deft. could only be entitled, by the widow's will, to the one-half of the property which, being purchased lands, of right belonged to the widow, under whose will he claimed.

23rd June, 1823.
CHRISTIAN, D.

SHARPE v. BRIDSON.

QUIRK, jun., for pltff; GELLING for Deft.

To recover £3, balance of a promissory note passed to pltff by deft's. wife, as apprentice fee with deft's. son.

QUIRK, jun., for pltff, stated that Bridson's son was taken by deft's. wife to be bound apprentice to the pltff. She stated at the time, as a reason for her coming, that her husband was a lame man, and otherwise unable from sickness to go abroad; in consequence of which statement pltff. agreed to take her son. She signed the indentures for him, and also passed her promissory note for £4, as an apprentice fee. He therefore contended, that, as the husband was unable to attend to his own affairs and the wife transacted business for him as his agent, he was accountable for any debts she might contract, but more particularly as the present debt had been incurred for the benefit of his son, who had not only been instructed in his business, but had been boarded and lodged also, during the time. One pound had been paid on account, which proved an acquiesence in what had been done, and the present suit was brought to recover the balance of £3, due on the note.

GELLING, for deft.-The whole transaction took place without deft's. knowledge or consent. It was too well known to require a moment's argument, that a note passed by a femme couverte was not an instrument valid in law, nor could the husband be bound by it in any way. Pltf. must have known this at the time of taking the note, and if any money had been paid on account, it was altogether unknown to deft. It was true he was a lame man but perfectly capable of transacting any business; and, if he even had been unable to go abroad, he was still in his perfect senses and capable of signing any paper, if the pltff, had thought proper to go to him. If he had chosen another course, he had done it in his own wrong. If the present suit succeeded, any man might be ruined on disagreement with his wife ; fortunately the law had provided against such a mishap, and the present suit must be dismissed with costs.

Per Curiam.-The wife's Signature was not valid ; but as her sig-nature was equally invalid to the indentures, the boy was, there-fore, no apprentice.

The Court expressed an opinion that pltff would have a good cause of action for the boy's board and lodging and the instruction So very fraudulently obtained.

23rd June, 1823.
CHRISTIAN, D.

MULLINS v. RICHARDS and the DUKE of ATHOL.

QUIRK jun., for Pltff. ; QUIRK, H.B., and Roper for Defts.

To recover the amount of a ground rent or annuity, payable to the pltff. during the life of a party resident in Ireland.

For defts., it was Stated, that they were quite willing to pay the money due, provided they had proof that the party, on whose life the annuity was payable, was actually then living. They had been informed he was dead.

For pltff, it was contended, that if defts. pleaded the death of the party as a bar to paying the annuity, they ought, of course, to prove their plea. The money had been paid regularly for many years, and they were never before called upon to obtain proof, which would cost more than the amount of the annuity. If the pltff could be put to Such proof now, it must, of course, be done every year, and the pltff would be deprived of the benefit of his annuity by the expense he would be put to to obtain it ; but on the contrary, if the defts. could only once prove the party dead, they got rid of the annuity for ever. It was, therefore, reasonable and just that the burden of proof Should be thrown on the defts.

Per Curiam.-The Suit is brought for a particular sum, and pltff is bound to shew his right and title to it. AS payment of it is to be made during the life of a certain person, the pltff must prove the party living, or he does Hot make his title good; for on his life depends the pltffs. right to the money.

The pltff not being prepared with proof, the cause was dismissed.

6th Oct., 1823.
CHRISTIAN, D.

WILKS v. COWIN, a Coroner.

GENESTE for Pltff ; ROPER and QUIRK, H.B., for Deft.

Cowin, under executions in his hands, had sold the effects of Minto, who had been a tenant to Wilks, and whose rent was in arrear. Minto was also in debt to the Lord Bishop for the tithes of the land rented from Wilks : the proceeds of the Sale were insufficient to pay the rent due, and the Lord Bishop claimed a tenth part of the proceeds of the Sale for his tittles, alleging that he had an equal preference for his tenth, with the landlord, above the creditors, and that, as the proceeds were insufficient, he ought to recover a proportionate share.

Upon the part of the landlord, it was contended, that the tithes were let to Minto at a specific sum by the Bsihop's Proctor; and, therefore, the arrear was only a simple debt, the same as any other creditor's.

Judgment for pltff, disallowing the Bishop's preference on account of the agreement for a sum of money.

13th Oct., 1823.
CHRISTIAN, D.

SKILLICORN v. GAWNE.

KELLY, jun., for Pltft: ; ROPER for Deft.

The pltff moved for execution for the amount of a bill of exchange, with interest from the date of it.

The deft., by his advocate, admitted an execution for the principal money, but objected to the interest as the bill was not protested for non-payment.

Per Curiam.-It is only through a certain form recognized by the law, that a bill of exchange can be made to bear interest. That form is wanting in this case, and there is nothing upon the face of the bill to shew it was to be paid with interest.

Execution without interest.