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© F.Coakley ,
2000
[from Advocate's Notebook, 1847]
LIB PLI., 29th June, 1824.
Cannell,
Plaintiff’s
Ancestor.
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John Cain = Joaney Cannell Wm Cannell Lace
sen. | alias Cain. sen. Defendant’s
| | Ancestor
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John Cain James Cain Wm Cannell = Anne Lace Wm Lace
| Jun. Jun. | elder
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James Cain Cath Cannell Wm Lace
jun. last seized sen.
Plaintiff |
Wm. Lace,
jun.
Defendant.
In this case the lands in dispute were purchased by Wm. Cannell during his coverture with Anne Lace. On their decease, Catherine, their only child, inherited ; and dying without issue, the House of Keys gave half the lands to the father’s heir and half to the mother’s.
William Cannell the first, had issue William Cannell, sen., who had issue William Cannell, jun., who, by his marriage with Anne, the daughter of Wm. Lace the first, had issue one child, Catherine Cannell. The said William Cannell, jun., during his said mar-riage, purchased the lands in dispute. Upon the death of Anne Lace, alias Cannell, the said Catherine Cannell became entitled to the one half of the said purchased lands as heiress-at-law to her said mother. Upon the death of her father, she became entitled to the other half of the said purchased lands as his heiress-at-law, and being so seised and possessed of the whole estate, she also died intestate, unmarried, without leaving husband, child, father, mother, brother or sister, and without having made any disposition what-ever of the said estate, which had in her become an estate of inheritance, and hence the present dispute arose, and the pltff. brought his action at Common Law to recover the premises.
The pitif. claimed by consanguinity, as follows :—The said William Canriell the first, besides the before named Wm. Cannell, sen., had issue one other child, a daughter, Joaney Cannell, which Joaney married John Cain, who had issue James Cain, sen., who had issue James Cain, jun., the pltff. in this suit.
The deft. claimed by consanguinity, as follows :—The said William Lace the first, besides the before named daughter Anne, had issue one other child, a son, William Lace, the elder, who had issue William Lace, sen., who had isssue William Lace, jun., the deft., who having got into possession of the lands in dispute, the present suit was brought to recover them from him.
In the court below, the jury, upon a hearing, gave the whole of the lands to the pltff. as having in him the blood of the father, and from that finding the said deft. brought the present appeal.
For the applnt., it was argued that the jury’s verdict must be reversed, if not as to the whole of the said lands, at least, most assuredly as to the one-half. The principles of the applnt’s. case were very distinctly laid down in Blackstone’s Commentaries and Christian’s Note upon the passage. Mr. Christian was himself a Manxman, and in this case had as clearly defined the law of his own country as that of England. In 2nd Blackstone, 222, it was stated, " if lands came by descent to John Stiles, from his mother, Lucy Baker, no relation of his father (as such) shall ever be his heir of these lands. In the note by our countryman Christian, the whole of our law was clearly stated. He says :—" for if an only child has taken by descent an estate from his father, and another from his mother, upon his death without issue, these estates will descend to two different persons" This was the law of England, and agreed exactly with the law of the Isle of Man so far. But, moreover, with us the wife of a purchaser during coverture, is as much a purchaser as her husband ; and her blood as worthy to inherit one half as his, if she leave lawful issue of her body by her then husband, or in case she should survive him. In the present case the mother left lawful issue, viz., Catherine Cannell, the person last seised, and that issue having died unmarried, and without disposing of the said property, the applnt., as her heir-at-law, by the mother’s side, was clearly entitled to that half which the last seised had inherited from her mother. It might be shewn, however, that the appint. had also a good claim to the other half. On reference to the Statute of 1777, for the distribution of intestates’ personal estates, the last clause stated, " that in case any one dies without leaving husband, wife, children, father, mother, brother, or sister, then the property to go to the next of kin of equal degree" ; but the statute does not limit the next of kin to the father’s side. Now Catherine Cannell died exactly in the situation described by the statute, and, therefore, the applnt. Lace, being her second cousin, is her only next of kin ; because Cain is so very remote, that there is no term in law which can designate his relationship, and, therefore, he cannot be said to be " one of the next of kin of equal degree," consequently Lace is entitled to the whole property as the only next of kin. Cain had also failed in his proof, as he had not gone far enough back to prove that his grandmother, under whom he claimed, was legitimate, and indeed their whole evidence upon that point was only hearsay.
STEPHEN, for the respndt., argued, in reply, that, if by hearsay evidence it can be proved that parties were generally believed to have been married, the Court would not require more, as in case of such remote ancestry, it would be extremely difficult in this Island to obtain any better proof. The Statute of 1777, quoted by the applnt. referred to the distribution of an intestate’s personal effects, which may be divided amongst any number of persons in equal degree of relationship, but real property must descend to the right heir-at-law. The respndt. has clearly proved himself to be the heir-at-law of the father of the last seised, who was also the first purchaser, and as the blood of the father was held to be the most worthy, the jury had rightly decided that the whole estate should go to him.
The Appellate Court adjudged each party entitled to one-half of the said property in dispute ; the pltff. being heir, by the father’s side, of that half which the last seised inherited from him, and the deft. being heir, by the mother’s side, of that half which descended from her.
CHRISTIAN, D.
QUIRK, Seneschal, for Petitioner.
This was a petition presented by Jas. Quirk, Esq., as Seneschal to his Grace the Duke of Athol, and it stated " That the petitioner is well entitled unto the chief-rents, fines, boons, suits, services, and customs, payable out of, and in respect of certain lands, estates, tenements, and premises, situate in the parish of Lonan, called Skinscoe, being part of the lands which, with other hereditaments and lordships, were, by letters patent, bearing date the 7th of July, in the seventh year of the reign of King James I., granted by his said Majesty to William, then Earl of Derby, and Elizabeth his wife, your petitioner’s ancestors, from whom the same have descended, through many generations, to your petitioner according to the limitations and provisions of an Act of Parliament made in the seventh year of the reign of James I. aforesaid. That the said lands and premises, called Skinscoe, are bound and liable to Pay and render to your petitioner yearly, and every year, the sum of £2 19s. 2d. chief-rent, together with four bolls of barley, nine lambs, nine geese, nine hens, and five quarters of turf. That James Skillicorn, of the said parish of Lonan, was called upon and sworn to act as your petitioner’s sergeant for the said lands, according to law and custom of this Isle, for the respective years 1814 to 1823, inclusive. That the said James Skillicorn hath neglected to pay to your petitioner the balance due by him for the said years, for and in respect of the said chief-rent, barley, lambs, geese, hens, and turf, which said chief-rent, together with the customs, calculated after the old rates, amount to the sum £7 6s. 10d. Manx, per year, which sum the said James Skillicorn hath, or ought to have, received from the tenants of the Abbey Lands of Lonan aforesaid. That there is now due and owing by the said James Skillicorn, the sum of £50 19s. 8d. Manx."
The petitioner prayed that the deft. might be ordered to be apprehended and imprisoned until lie paid the amount claimed, with costs of suit.
Upon a hearing, judgment was granted for the pltff. as prayed for.
GELLING for Pltffs. ; KELLY for Deft.
A Trespass Jury had been convened and sworn, at the suit of the pltffs., to discover who had broken certain windows in the pltffs.’ out-house, and committed other damages. Four men were accordingly sworn by the Coroner, and, having examined many witnesses, found that several children, under the age of fourteen, had committed the trespass. On account of the said children’s tender age the jury found a verdict against their parents. Creer, the respndt. and father of one of the children, when the jury gave in their verdict at the Deemster’s Court, entered into bonds to traverse the cause before a Jury of Six. The matter was accordingly argued before them, and they returned a verdict " that the only evidence against the traverser Creer, was the deposition of John Clague, which deposition was signed ‘ John Quayl his mark,’ and that the verdict against Creer for this irregularity ought to be reversed." From this verdict the pltff. Hugh Dumbell traversed to the House of Keys, and KELLY, for respndt., objected, that one of the pltffs. only, in the court below, had appealed from the verdict of the Traverse Jury though the suit was instituted originally in the name of both.
GELLING stated that the practice was certainly extremely loose in the entering of appeals and traverses, at the Rolls’ Office, as any one might enter into bonds for another there, The traverse was granted as a matter of course, and, in this instance, as Mr. H. Dumbell only had appeared, he only was placed upon the record.
The House directed the cause to proceed.
GELLING then wanted to read an affidavit to explain the cause of John Clague’s depositions being signed with "John Quayle’s mark ;" and, he contended, he ought to be allowed to read it, as it arose entirely from the mistake of the clerk, was not discovered until after the verdict of the jury, and, of course, it was impossible it could have been laid before them.
The House refused to have any thing read as evidence which had not been submitted to the court below.
GELLING stated, that this was a traverse from the verdict of a Traverse Jury, which verdict was given in favour of the respndt. Creer, upon the grounds of irregularity, and that there was no evidence against Creer, save that of John Clague, whose deposition was signed " John Quayle his X mark." Now, he contended, that the evidence of John Clague was equally strong against the respndt’s son, notwithstanding the trifling mistake of another man’s name being signed to it, and which he could easily explain, if allowed ; but, independent of that, Ann Clague, another witness, proved that respndt’s son was with the other boys when the damage was done. Another witness says the same thing, and the respndt. himself, when examined before the Trespass Jury, proved that his son had confessed to him that he was with the other boys when they were there. He contended, therefore, there was quite proof enough against the respndt’s son, even without the evidence of Clague, and that the father, as the natural protector, ought also to be responsible for the improper acts of his son ; at least, in cases of mischievous trespass of this nature.
KELLY contended that the proceedings were quite full of error. First a deposition is produced signed by a man who never swore it. In the second place, the Traverse Jury had been summoned out of the Middle Sheading, instead of out of Rushen Sheading ; both were capital errors, and either ought to be sufficient to overturn the applnts.’ case. He further contended that the father ought not to be made responsible for the mischievous acts of his son, which it was not in his power to prevent.
The House affirmed the verdict of the Trespass Jury, reversing the verdict of the Traverse Jury.
GENESTE for Pltff. ; ROPER and QUIRK, junl. , for Deft.
The applnt. was deft. in the court below, where a verdict of £12 was obtained against him upon the following case:— Deft., now the applnt., as agent for Col. Wilks, had let part of his land to the plitff., now the respndt., upon the alleged understanding, that the pltff. was to put turnips on the field for three weeks. But the pltff. having put 80 head of sheep into a certain field of Col. Wilks, without strewing it with turnips, the applnt. treated them as trespassers, and impounded them. They were released after twenty-four hours, upon the respndt. paying the fees.
It was a further part of the applnt’s. case that the field into which the sheep had been put, was not the same field which the deft. let to the pltff.
On the part of the respndt., the agreement to put turnips was denied, and the letting of the identical field into which he had put the sheep, was insisted upon, and it was urged that the sheep being at the time with lamb were greatly injured by being confined twenty-hours without food.
Evidence was produced on both sides, and the jury gave a verdiet of £12 damages against the deft. who thereupon appealed.
GENESTE, for applnt., now submitted that the action was illegally brought as against Dunlop, he being only the agent of Col. Wilks, who was residing in the Island at the time the action was filed. That he urged the same objection in the court below, but it was overruled there, and he now urged it more strenuously in this court.
ROPER, for respndt., contended that any man employing an agent is only responsible for his legal acts ; but if the agent does anything contrary to law, he is answerable for it in his own person. Letting the lands was strictly within the applnt’s. duty, as agent, and would bind his principal ; but impounding the sheep was illegal, and it would be absurd to argue the principal would be responsible for such an act.
The House heard the case upon the merits, and affirmed the verdict of the jury.
CHRISTIAN, D.
GELLING for Pltff. ; ROPER for Deft.
The pltff. stated in his petition, that he had purchased, at auction, the printing press, types, machinery, and materials formerly belonging to the proprietors of the True Manxman newspaper. That the said articles being in possession of the deft. Sumner, the other deft., Cowin, the Coroner, under executions in his hands against Sumner, took in pawn, and appraised some of the petitioner’s goods, and threatened to sell them as Sumner’s property, to satisfy the said executions. The petition then prayed that the said presses, types, &c., might be put into the petitioner’s possession, and that until a hearing, a schedule might be taken of them, and that they might be secured to prevent loss or embezzlement.
The petitioner made affidavit to the statements in the petition, and the DEEMSTER thereupon ordered the petition to be heard, and, in the meanwhile, inhibited the Coroner from making sale or otherwise disposing of the several articles mentioned in the petition.
Subsequently the case was heard in presence of parties, when the Court made the following judgment :—.
"18th Feb., 1826.
" Having heard the parties on both sides, and received proof, as well from the admission of the deft. Sumner as otherwise, that the types and other articles of printing enumerated in the foregoing petition, were, in June, 1824, purchased by, and still continue the property of the petitioner, T. Gawne,—and it having been shewn that the same have been arrested for rent by the other deft., James Cowin, and also under certain executions granted against the said John Sumner,—It is hereby ordered that the defts., John Sumner and James Cowin, do forthwith surrender, and give up, to the petitioner, Thomas Gawne, the possession of the said types, and all the other articles of printing, subject, nevertheless, to the said arrest for rent, but nowise liable to the aforesaid executions."
" J. CHRISTIAN."
The judgment being against the Coroner of the sheading, it was enforced by the Coroner of Glenfaba, as appears by his certificate annexed
" I do hereby certify that I have obtained possession of the press, types, &c., mentioned in the foregoing order, from James Cowin, Coroner of Middle Sheading, and delivered possession of the same to Thomas Gawne, Esq., this 23rd February, 1826."
" ROBERT CLARK, Coroner of Glenfaba."
SMELT, G.
‘ This was a petition stating, that petitioner was a prisoner under an Ecclesiastical Court order for a sum of money which he was wholly unable to pay, and that he was unable to maintain himself in gaol ; and the petitioner therefore prayed that he might be either maintained in gaol or discharged.
Upon a hearing the Court made the following judgment, which is the usual order in such cases :—.
" Upon hearing this petition, and consideration had thereof, the petitioner deposed that he had not in his power, custody, or possession, any cash, goods, or effects whatever, to satisfy the order under which he stands imprisoned, or to maintain himself in gaole—it is therefore hereby ordered and decreed, that Walter Daniel, in this petition named, do pay or cause to be paid into the hands of the gaoler of Castle Rushen the sum of 3s. 6d. British, as subsistence for the petitioner for one week, and that he do advance the like sum at the commencement of each week, to be applied by the said gaoler in paying the petitioner his subsistence daily, at the rate aforesaid. And in case the said Walter Daniel shall neglect to pay, or cause to be paid, a sum sufficient for the purpose aforesaid, so that the petitioner shall be one whole day without such subsistence, it is hereby further ordered, that the said gaoler do release the petitioner from imprisonment, under the order in this petition mentioned, without further order or application for that purpose. Judgment and execution are, nevertheless, hereby awarded for the amount of the order aforesaid, against the property and effects of the petitioner, whensoever and wheresoever the same may or can be discovered."
"C. SMELT."
HOUSE OF KEYS, 18th Nov., 1827.
GELLING, for Pltff.
J. Cain.
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B Cubbon John Cain R Cain
| (Purchaser) |
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B Cubbon Patk Cubbon = Elizabeth Cain Isabella Cain R Cain
Plaintiff | |
Eliz. Cubbon James Cain
last seized Defendant.
John Cain, on his daughter Elizabeth’s marriage with Patrick Cubbon, settled purchased lands upon her in consideration of the marriage, and £10 paid to him. This is not a purchase so as to entitle the heirs of Cubbon to inherit—failing issue of the marriage.
Appeal from a verdict at Common Law.
John Cain deceased was entitled to certain cottage land in the town of Peel, No. 31 upon the Manorial Records, and of’ the annual lord’s rent of fourpence. In contemplation of the marriage of his eldest daughter, Elizabeth Cain, with Patrick Cubbon, on 12th December, 1780, John Cain, by deed of that date, settled one-half of the said cottage land upon the said Elizabeth, in consideration of the said marriage, and of £10 paid to him by the said Robert Cubbon. In 1790 the grantor died, leaving Elizabeth, his only child, him surviving, who then, as his heiress-at-law, became entitled to the other half of the said cottage land, and entered into the uninterrupted possession of it ; and the said Elizabeth Cubbon with Patrick Cubbon her husband were subsequently entered tenants upon the Manorial Records for the whole of the said cottage rent of fourpence. On the 10th October, 1791, Robert and Elizabeth Cubbon sold a part of the said premises of threehalfpence rent to Thomas Watterson.
Elizabeth Cubbon survived her said husband, and continued in possession of the remainder of the said cottage lands (reduced by the sale aforesaid to the rent of twopence halfpenny), up to the time of her decease in 1826, when Elizabeth Cubbon, jun., the only child and heiress-at-law of the said Robert and Elizabeth Cubbon possessed the said premises, and shortly afterwards died, unmarried, and without disposing of the said cottage land, whereupon the deft. entered into possession of the said cottage land and claimed the same as heir-at-law of the said Elizabeth Cubbon (last seised) by her mother’s side (through whom the property came), he being the only surviving grandson of the only brother of John Cain the first purchaser.
Upon this the pltff. brought his action at law to recover the said premises, and claimed as heir-at-law of the said Elizabeth Cubbon by her father’s side, being her father’s only surviving brother.
On the 10th October, 1827, the jury at law found a verdict for the deft.
From this the pltff. appealed to the House of Keys, and on the 13th November, 1827, the Keys confirmed the verdict of the jury in the Court below.
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Any comments, errors or omissions
gratefully received The
Editor |
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