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© F.Coakley ,
2000
[from Advocate's Notebook, 1847]
19th Feb., 1829.
SMELT, G.
BLUETT for Pltffs. ; GENESTE for the Defts.
This was an application, by petition styled in a bill then pending in Chancery, stating,that on the 24th May, 1828, the compints. had sued out their action of arrest against Anthony Dunlop, since deceased, for £3,000, under which the estate of Ellerslie, and the stock, crop, and effects thereon were arrested. That the defts., Hawthorn, J. Dunlop, and M’Whirter, presented their petition to the Court claiming the said property as theirs. Whereupon petitioners filed their bill to set aside the claim, and to have the arrest sustained until final judgment, and for injunction to inhibit all parties from making away with the property, which injunction, upon a hearing, was granted.
Subsequently, it was, by agreement, made a rule of Court, that the personal property should be released from arrest, upon the defts. Hawthorn, John Dunlop, M’Whirter, and Ann Dunlop executing a bond for the amount of the value of the same, such value to be ascertained by a jury. That the value was ascertained accordingly, but defts., Hawthorn and others, had not given the required security, and the deft. Ann Dunlop, in defiance of the arrest, and contempt of the stay aforesaid, had made away with, and sold a quantity of the effects arrested. Wherefore the petitioners prayed that the said Ann Dunlop, might be apprehended and imprisoned in the gaol of Castle Rushen, until she restored the arrested property she had made away with, or accounted for the proceeds thereof. Ordered that the bond in the petition mentioned for the forthcoming of the personal property, be signed by the trustees in this petition named, or otherwise that Ann Dunlop do give security to the extent of £1450, the valuation of the said personal estate.
C. SMELT.
[see ch11 of Bullock's History for a pen portrait of Dunlop who was also a MHK]
GAWNE, KELLY, and QUIRK, JUN., for Pltff ; LLEWELLYN, BLUETT, and
DUMBELL for Deft.
John Quay1e Lucy Quayle James Quirk
died 1815 = died 1824 sen
(Grantor.) |( Grantor.) |
+--------++---------+ +------+------+
Robert John Eleanor = James Quirk Philip Quirk = Mrs Cain
died a Defendant. died 1820.| | married to
bachelor, (Grantee.) | died 1821. | Philip Quirk.
1817 | |
Jas J. Quirk, Robert Quirk
died 1834, Plaintiff
last seised
If the last seised of lands, which came to him as inheritance by original grant through the female line, dies without issue, his uncle, by the mother's side, being heir-at-law of the original grantor, shall inherit before the first cousin of the father’s side, there being none of the blood of the original grantor in the veins of the cousin.
In this matter the pltff. laid claim to certain lands, dwelliug houses, and premises, in the occupation of the deft., and brought a petition to the Deemster, praying to be put into possession of them.
The DEEMSTER, upon a hearing, finding that the deft. had not recently obtained possession of the lands, refused to exercise the summary jurisdiction of the Court, and referred the petitioner to Common Law for redress.
The pltff. accordingly filed his declaration in the words following :—"Robert Charles Quirk, of Knockaloe, a minor, by John Kelly, of Castletown, Esq., his guardian, complaineth against John Quayle, of Castletown, Esq., and sheweth, that James John Quirk, a minor, lately deceased, who was proprietor of the said estate of Knockaloe, was, in his lifetime, well and sufficiently entitled unto, seised, and possessed, and was, by his guardian, in receipt of the rents, issues, and profits of one-half, or a moiety of certain lands and premises situate in the parish of Malew, called the Whitestone Fields, being part of the quarterland of Ballalough, and of the annual lord’s rent of two shillings and fourpence halfpenny ; also to a certain dwelling house and premises, situate on the Parade, near St. Mary’s Chapel, in Castletown, at present under lease to George Hinde Edwards, Esq., of the description of property called cottage lands, numbered 35 and 36 on the Manorial Records, and of the annual cottage rent of one shilling and sevenpence halfpenny; also to a certain other dwelling house and premises situate near the Castle, in the said town, at present tenanted by John Oakley, publican, of the description of property called intack lands, numbered 112 and 206 on the Manorial Records, and of the annual intack rent of fourpence halfpenny ; also to certain other properties in the said town of the description of property called cottage lands, numbered 83 and 85 on the Manorial Records, part of which last mentioned premises, consisting of a large garden, called Frissel's Garden, and a croft, yard, and offices and stables thereon erected, and other premises, are now in the possession of Baron Smalley, Esq., as tenant thereof, and are of the annual cottage rent of seven shillings and sevenpence, and the remaining part of the said premises numbered 83, adjoining the said premises last mentioned, are now in possession of Henry Kelly and John Kelly, stone-cutters, and others, and are of the annual cottage rent of fivepence halfpenny. That upon the death of the said James John Quirk, which happened on the 29th day of August, 1834, the pltff., who is eldest son and heir-at-law of Philip Quirk, late of Scarlet, Esq., deceased, who was the paternal uncle and heir-at-law of the said James John Quirk, became well and sufficiently entitled unto the said several lands, properties, and premises herein before mentioned and described, and the pltfif. well hoped and expected that he would be immediately put into the quiet and peaceable possession thereof ; but the said deft. has illegally intruded himself into possession of the lands and premises, and the same unjustly withholds and detains from the pltff. That the pitif., in order to recover the possession of the said several premises, did, by his said guardian, present his petition to the Honourable Deemster Heywood, praying that the deft. should be ordered forthwith to surrender, and deliver up, to the pltff. possession of the lands, properties, and premises before mentioned, which was resisted by the deft. ; and upon a hearing thereof at a court holden at Castle Rushen, on the 2nd day of February, 1835, the pltff. was referred to a Court of Common Law for redress in the premises. By means of all which the illegal conduct, proceedings, actings, and doings, of the deft., the pltff. charges that he is damaged in the sum of £1000, British ; for recovery whereof, and for the purpose of ascertaining and establishing the pltff's. right and title in, and unto, the said quarterland, intack, and cottage properties, herein before particularly named and described, the pltff. brings this suit and prays judgment according to the due course of the Common Law."
The deft., according to the usual practice of the Common Law Courts, did not put in any written pleading to this declaration, but met the case upon the merits.
Upon the hearing, pltff. and deft. agreed to waive the formal proof of facts which it was useless to dispute, as they admitted of plain and easy proof, and the following admissions were made by the respective parties, and entered upon the record :— " The pltff's. advocates admit that the deft. is the only surviving brother of Eleanor Quirk, otherwise Quayle, the wife of James Quirk, late of Knockaloe, deceased, and mother of James John Quirk ; and also is the only surviving son of John Quayle and Lucy Quayle, deceased. That John Quayle, the father of the deft. and of the said Eleanor, departed this life in the year 1815, leaving the said Lucy, his wife, him surviving. That the said Eleanor inter-married with the said James Quirk, in the said year 1815. That Robert Quayle, son of the said John and Lucy Quayle, departed this life, a bachelor, in the year 1817. That the said Eleanor had issue the said James John Quirk only, and departed this life in the year 1821. That the said Lucy Quayle departed this life in the year 1824. That the said James John Quirk died, a minor and a bachelor, of the age of sixteen years, in the year 1834."
" The deft's. advocates admit that the pitif. is the eldest son and heir-at-law of Philip Quirk, deceased, who was the only brother of the said James Quirk, deceased, who was the father of the said James John Quirk, deceased, and that the said James John Quirk was in the possession, and received the rents, issues, and profits of the premises in dispute, from the time of the death of the said Lucy Quayle up to the time of his death."
" The pltff's. advocates further admit, that the property claimed, or intended to be claimed, by the declaration filed in this cause, consists of the whole of the property conveyed in trust by John Quayle and Lucy his wife, by deed of the 16th October, 1813, for the use of the said Eleanor Quayle, otherwise Quirk, and one-half of the property conveyed by that deed for the use of the said Robert Quayle, deceased."
The deed referred to in the last admission conveyed the property sued for to Robert Quayle and John Taubman " in trust to permit the grantors, John Quayle and Lucy Quayle, and the survivor of them, to hold and enjoy the said granted premises for their natural lives, and upon the decease of the survivor of them, in trust to convey certain properties therein specified to their son John Quayle, and to convey the dwelling in which they lived, and the Whitestone Fields to their son Robert Quayle and the heirs of his body law-fully begotten for ever. To Eleanor Quayle their daughter and the heirs of her body lawfully begotten, the dwelling house at the—-, and the dwelling house in Kirk Malew, or Church, street ; and in the case of the death of any of them the said children John, Robert, and Eleanor, without lawful issue, that they the said Robert Quayle and John Taubman, and the survivor of them, and the executors and administrators ofsuch survivor, shall well and truly sell, assure, and confirm the property herein before directed to be sold, assured, and confirmed to such child as may so happen to die without lawful issue as aforesaid, to and between the survivors of the said three children and their heirs, share and share alike ; and in the case of the death of any two of the said children without lawful issue that then, and in that case, the whole property hereby conveyed and sold shall be well and sufficiently sold, conveyed and assured, to the survivor of the said three children and the right heirs of such survivor according to law."
GAWNE and KELLY, for pltff.—Upon the facts stated it is clear this property must belong to the pltff. For having once vested in James John Quirk, the minor, upon his decease the property, as a matter of course, must descend to his right heir-at-law, and, in order to ascertain who is that right heir, two rules of law must be considered :—first, that the male line is to be preferred to the female line ; and, secondly, that the inheritance cannot ascend, but must descend ; so that a nephew shall inherit before his uncle. Upon these two principles it was clear the pltff. was the right heir-at-law of the last seised, being his first cousin by the father’s side, whereas the deft. was his uncle by the mother’s side. The deft., however, might rely upon the deed of trust ; but it did not appear that he could derive any benefit from that. The deed in question was not what is called a bargaine ; that is to say, a conveyance from a parent to his eldest son of part of the inheritance, but was, in point of fact, a sale to strangers for a valuable consideration, the sum of five shillings constituting it a purchase. The trust deed itself was entirely in favour of the pltff. ; for the trustees, upon the death of the surviving grantor, were bound to sell, grant, and confirm the property in dispute to Eleanor Quayle and the heirs of her body. It was important then to consider what right had James Quirk, the husband of Eleanor, in the property. Our law recognised but two titles, one by purchase, and the other by descent. This pro-perty clearly did not come by descent, Eleanor not bein.g heiress-at-law, and, therefore, must be looked upon as a purchase ; and, if so, the husband had an absolute right in one-half, and his wife in the other : upon their decease their respective rights vested in their son, as their heir-at-law, and being once so vested in him, upon his decease it would vest in his heir-at-law, and as no man could have more than one heir, that heir, according to the principles before stated, could only be the pltff.
LLEWELLYN, BLUETT, and DUMBELL, for deft.—Tlie pltff. can never take this property, or any part of it, for there is none of the blood of the original grantors in his veins. The principles of law relied on by the pltffs would be strictly applicable to this case if the person last seised had taken the lands by purchase, and not by inheritance ; but where the facts were otherwise, it was erroneous to say a man could only have one heir ; for if a man inherited from his father and mother four different estates which they had previously inherited from their respective fathers and mothers, upon the death of that man without issue, he would have four heirs, viz., one to each estate. In the present case, therefore, as the last seised possessed the lands by inheritance, it was necessary to trace out from whom the lands descended, and the blood of the grantor would inherit. A reference to the dates of the death of the parties named in the trust deed would furnish an answer to the argument of Eleanor Quayle’s husband’s rights. John Quayle, the grantor, died in 1815, Robert Quayle, one of the sons, in 1817, Eleanor Quayle, otherwise Quirk, in 1820, James Quirk, her husband, in 1821, and Lucy Quayle, the surviving grantor, in 1824. It was to be remembered that none of the grantees were to possess until the death of the surviving grantor ; but Eleanor died before her mother, and, consequently, never possessed the property, so that if the husband had survived both grantors he never could have had any in-terest in the estate, but it would have passed him and gone to his son direct. In this case, however, both Eleanor and her husband died before Lucy, the surviving grantor, and, consequently, never possessed, so that upon the death of Lucy, James John Quirk took no interest whatever in the lands as heir to his father, but solely as heir to his mother, and as the male heir was not to be preferred where the property came through the female line, the deft. alone was the heir of this property. The point had already been strongly contested, and effectually settled, in two cases, that of Cubbon v. Cain, Lib. Pli., 1827, which arose out of a settlement in which a small pecuniary consideration was paid to the grantors, but the payment of such consideration was not held to constitute the lands a purchase in the grantee, and the jury, by dismissing the pitif’s. action in that case, gave the lands to the heir-at-law of the original grantor. The other case was that of Cain v. Lace, in which the land having been purchased by husband and wife, and their issue extinct, the Keys gave half to the blood of the husband, and the other half to the blood of the wife.
Deemster HEYWOOD.—This is a case more for the judge than the jury ; for all the facts being very fairly, and I think, in such a case, very properly, admitted by the advocates on both sides, it becomes a mere question of law. Upon looking into the trust deed relied upon by the deft. in this case, it is quite manifest that it is a family settlement, and, as such, would come within the provisions of the 12th clause of the Clerk of the Rolls’ very able Analysis of the Law of Descent of Hereditary Property in the Isle of Man. It is there distinctly stated, "that a person other than the right heir-at-law taking an estate by gift, grant, or bequest, without a valuable consideration, is not considered a purchaser so as to entitle the husband, wife, or widow, to an absolute right in a moiety of such estate, though subject to be taken in execution for debts, as intacks, mills, and cottages are." The question then is, who is the heir of James John Quirk, the last seised ? To know this, you must trace back the estate to where it came from, and you find that it came to him through his mother. The next question is, who is her heir ? Having no surviving children, her heir would be her eldest brother, if she had one ; now, assuredly, the pltff. is not her eldest brother, but the deft. is. Again, suppose that Eleanor had no issue (and having had but one, and that one having died without issue, it is the same as if she had not had any), and died before her mother, the original grantor, who then would take ? Of course, the deft. as the right heir-at-law of the grantor. But even supposing the title of Eleanor, if she had possessed the premises, was to be construed to be a purchase in her (which, however, he must repeat was not the case), still the pltff. could; in that case, only claim the one-half of the premises sued for. The other half, at least, would belong to Eleanor ; and the Quirks, having none of her blood in their veins, could never take, and failing all issue in the Quayle family, whence the property came, the Lord of the manor would take, but never any of the family of the Quirks.
The jury, by their verdict, dismissed the action with costs.
From this verdict the pltff. appealed to the House of Keys, and the cause coming on to be heard before them, they, by their judgment, confirmed the verdict of the jury, and dismissed the appeal.
HEYWOOD.
DUMBELL for Pltffs. ; STEPHEN and QUIRK for Deft.
Suit, by warrant, to obtain possession of certain lands, alleged to have been let by the pltffs. to the deft. to commence possession from the 12th Nov., 1837.
Objected, by deft., that it was too late now to bring a suit for possession of lands. By the Common Law, the time of suing for the possession of lands was limited to the 6th Dec. on the South Side of the Island.
For pltff. it was replied, that the deft. was actually summoned to the court on or before the 6th Dec., which was sufficient.
Per Curiam.-If the suit is commenced by the summons of the deft. within the time, that is enough to meet the intention of the law.
NOTE—By the Common Law, notice to quit lands must be served by a land-lord upon his tenant on or before the 5th July, to entitle him to eject his tenant on the 12th November following, and it a suit to eject be afterwards brought, on or before the 6th December, on the South Side of the Island, and the 11th December on the North Side, it is a sufficient following up of such notice. But if the suit for possession is not commenced until after those dates respectively, it will be held to be an abandonment of the notice, and the tenant would be entitled to hold over for another year.
HEYWOOD, D
DUMBELL for Pltff. ; BLUETT for Deft.
This was a petition for a rehearing of a suit in which an execution had been admitted by a constable at a former court, the defts being in contempt, and having, in the usual form, authorised the constable to admit the debt unless deft. appeared to defend the suit.
BLUETT, for deft., stated, that on the day the execution was admitted the pltff. had two witnesses duly summoned and in court and he submitted, that the present petitioner was bound to produce those witnesses.
DUMBELL.—On a petition for rehearing, the petitioner is certainly bound to produce the witnesses that were "sworn and examined," but not all the witnesses that might by chance be in court.
BLUETT.—In that case a pltff. is in a worse situation by having his case admitted than if it were contested.
Per Curiam.—Such might be the case ; but the petitioner, on rehearing, is only bound to produce the witnesses that were actually examined.
NOTE—The question of any rehearing being allowed where an execution had been admitted for the deft. was raised, but disposed of upon special grounds that established no precedent either one way or the other.
HARTWELL, V.G.
DUMBELL for Pltffs. ; QUIRK, Jim., for Deft.
This suit was brought to recover the sum of £25, being the amount of a legacy bequeathed to the pltff. Elizabeth by the will of her mother Elizabeth Skillicorn, proved on the 21st September, 1794, with interest from the day of the death of the testatrix, and of which will John Skillicorn, deceased, father of the pltff. Elizabeth, had been sworn executor.
QUIRK, for deft., objected that the suit was improperly brought, the deft. not being the representative of the original testator, but merely the administratrix of the person who happened to have been the executor of such testator.
DUMBELL.—The pltffs. might, if they thought proper, set up an administrator to the estate of the original testator, or they might establish their claim as a debt due by the executor, whose representative the deft. is.
QUIRK.—If claimed as a private debt of the deceased, then I plead the Statute of Limitations.
DUMBELL.—The statute does not apply. Legacies have continually been recovered after any lapse of time ; for example, in the case of Nelson v. Cain.
The Court held with the deft., and dismissed the suit without costs. From this judgment the pltff. appealed to the Staff of Government, and that court, upon a hearing, directed an issue at law to try whether or not the legacy had been paid.
Upon this issue being tried at Common Law, the jury returned a verdict in favour of the pltff., finding that the legacy had not been paid ; and, upon this finding, the Staff of Government reversed the Vicar-General’s judgment, and granted an order for the amount, with interest at four per cent., and costs of the court below.
HEYWOOD, D.
QUAYLE for Pltff. ; DUMBELL for Deft.
This was a transmission of an action from the Court of Chancery. The pltff., as Overseer of the parish of Braddan, claimed £3 3s. from deft. for the tax of certain dogs, and having received notice that the deft. (who was not a native of this Island) was about to leave - the same, to secure himself he took out an action of arrest, to which the deft. gave bail, and the matter now came on before the Deemster in the usual course of transmission. Upon the hearing of the cause the pltff. established his claim to the amount actioned for, and moved for execution, with costs to be taxed.
DUMBELL, for deft., objected to any costs but the common costs of a suit in the Deemster’s Court. The cause of suit was not the subject of an action of arrest. The remedy given by law for recovering of arrears of such taxes was for the Deemster to order the deft., upon conviction, to be imprisoned until the fine, expenses, and costs be paid, and not to grant execution against his goods. In this case suppose the principal had left the Island ; of course the bail could not be imprisoned, and, therefore, any judgment under the action would be inappropriate, consequently, the action ought not to have been taken out, and of course the costs could not be allowed.
QUAYLE, for pltff..—It has been proved in evidence that the pltff. was noticed to look after the deft., who was about to leave the Island, and that he might be made responsible if the taxes were lost ; he was, therefore, obliged to secure the deft’s. person for his own safety’s sake, and he submitted, that although the law did point out a mode to be pursued to recover the money, it did not bar the pltff. from taking an action of arrest to secure the deft’s. appearance to any suit that might be brought.
Deemster HEYWOOD,—I have taken time to consider this matter, and have consulted my brother Deemster and the Clerk of the Rolls, and we are of opinion that an action of arrest does not lie in a case of this kind. The Overseer must use all diligence, by suit or otherwise, to recover the taxes due, and if obliged to sue, and the deft. leaves the Island before judgment can be obtained, the money may be lost, but no action of arrest can be taken. Let the pltff. therefore take his judgment for £3 5s., with the usual costs allowed in the Deemster’s Court.
HEYWOOD, D.
BLUETT for Pltff ; Deft. in Person.
Suit brought, by warrant, to obtain an order of imprisonment against the deft. for a sum of money due for goods bought at an auction of effects sold under judgments in the pith ‘s. hands.
Objected, by the deft., that he had not been furnished with any account.
Replied, for the pltff., that a Coroner was not bound to furnish an account for goods bought at his auction, because the purchaser had no right to take the goods at all until paid for, the Coroner always selling for ready money.
Deemster HEYWOOD.—Does the account include more items than one ? If so, an account must be furnished.
The pltff. admitted that there were several items, and the matter was, therefore, held over for the pltff. to prove he had furnished an account.
HEYWOOD, D.
DUMBELL for Pltff. ; GELLING and BLUETT for Deft.
The suit was brought, by warrant, to obtain execution for rent of a tan-yard. Upon a former court-day it was contended that no demand had been made.
GELLING, for deft., now repeated the objection that no demand had been made, which the law required in order that the deft. might thereby know how to make his defence, and called upon the pltff. to prove the demand.
DUMBELL, for pltff.—The deft. cannot allege ignorance, because the cause of suit was, though it was not customary, in this instance purposely written on the warrant. Moreover, in this case the debt has been denied, and the practice of the court is, that if the deft. denies the debt, it is not necessary to prove a demand.
BLUETT, for deft.—There is no evidence to shew that the deft. ever saw the warrant. In this case, at the former court, the demand was denied in the first instance, and the amount of the debt afterwards. This was favourable to the pltff., as it enabled him to come prepared to prove both parts of his case ; but it was not intended by thus favouring the pltff to waive the benefit of deft’s. first objection to the want of a demand.
Per Curiam.—In England it is not necessary to make any demand, and even if the debt be disputed it is not necessary to prove a demand. But with us, if the debt be admitted, then it would be necessary to prove a demand, because the deft. ought not to be put to costs unnecessarily not disputing the debt, as he might have paid it without any suit if he had been asked for it out of court.
The cause was afterwards referred to arbitration.
HEYWOOD, D.
DIJMBELL for Pltff. ; BLUETT for Deft.
A suit, by warrant, to recover the amount of a promissory note passed by deft. to one Raesback, and by him endorsed to the pltif.
Deft. took an objection, that the note had been discharged by moneys subsequently paid to Raesback on account of it.
DUMBELL.—The note is payable on demand, and is, therefore, always negotiable for the full amount ; it is, in fact, like a bill of exchange, and in the hands of the holder cannot be affected by any thing except what appears upon the face of it. A bill of exchange or promissory note payable at a certain fixed time, is different. There, if payment be made, and the note negotiated subsequent to the expiration of the time fixed, a bona fide holder would be subject to all the legal consequences of payment.
The Court ruled with the pltff.
The pltff. then called Jane Raesback, a witness, who proved the endorsement of the note. Upon cross-examination, it appeared, that she was the wife of Raesback ; that she had, by her husband’s authority, taken the note to the pltff. and endorsed it in his name. She also proved that a part of the original consideration of the note was for liquor, drunk by deft. in her husband’s public house.
Upon this evidence, BLUETT, for deft., took two objections. First, that although a married woman might be authorised to act as attorney for her husband, she was not competent to prove her authority to act, and still less to endorse her husband’s property away. Secondly, that the note being passed for an illegal consideration, was void ab initio, and could not be recovered.
DUMBELL.—Any agent is competent to prove his own authority to act, and, in this particular case, no objection is made by the husband of the witness.
The Court overruled the objections, and granted execution for the amount.
STEPHEN for Pltffs. ; DUMBELL, BLUETT and OTHERS for Defts.
Upon hearing of an application for injunction, deft’s. advocate proceeded to read affidavits in support of the application.
Objected, by DUMBELL, that the Court had already ruled that no affidavit could be read if it went to contradict the statements in the answer already put in.
STEPHEN, for pltffs.—Only one of many defts. has answered, and he submitted that he had a right to read them as against all the rest of the defts.
The Court ruled with the pltffs.
STEPHEN then proceeded to read the affidavit of R. Fargher, and the joint affidavits of R. Fargher and W. Sheriffs, and also the affidavit of John Duff one of the pltffs.
Objected, by BLUETT, that he, Fargher, was a deft. to the bill, and his affidavit could not be read against his co-defts. that the joint affidavit was equally objectionable, being not less the affidavit of Fargher, because Sheriffs had also sworn to it—it was impossible to separate them ; and that the petitioner Duff’s affidavit was equally inadmissible, he having already made affidavit to the statements in his bill for the purpose of the injunction.
Objection held good and the affidavits refused.
READY, G.
DUMBELL for Pltff. ; BLUETT and JEFFCOTT for Deft.
This was an appeal from a judgment of the Deemster, wherein the applnt. having applied to Deemster Christian to have the present respndt. ordered to clear out the course of a river, and restore the same to its proper channel, and restore a boundary that had been broken down by the flood.
DIJMBELL..—The case is exceedingly simple. No man has a right to let a bank of earth accumulate in his running water. The deft. owns the lands on both sides of a running stream. The petitioner has lands adjoining the deft’s., lower down the stream, and near to pltff’s. lands the deft. has suffered the loose stones and shingle to accumulate into a bank in the bed of the river, by means of which the course of the stream was altered. There was a boundary fence between the pltff’s. and deft’s. lands, and on the deft’s. side of the boundary there was formerly a space of land between the boundary and the river side. The deft. suffered this strip of land to be entirely washed away, and the consequence was that a succeeding flood carried away the boundary fence, and the river broke in upon petitioner’s lands. The petitioner brought this application to the Deemster for the relief before stated, and the Deemster refused to exercise his summary jurisdiction, but referred the parties to law. The Appellate Court affirmed the Deemster’s judgment, and the petitioner afterwards brought his suit at law and obtained a special verdict in his favour.
HEYWOOD, D.
DUMBELL and HARRISON for Pltff; QUAYLE for Deft.
James Dixon, deceased, in his lifetime, granted a lease to the deft. of certain lands, which were his wife’s lands of inheritance. He died in May, 1843, the tenant remaining in possession ; and in November, 1843, the present pltff. obtained execution against the deft. for the rent of that year. Subsequently, executions for various parties were granted against the deft., and juries’ returns obtained. By a clause in the lease this worked a forfeiture, and put an end to the term, and the suit was now brought for possession of the property.
For the pltff., evidence was given to prove that she possessed the lands as heiress-at-law of Mrs. Whiting, deceased. That after the juries’ returns were obtained, notice was given by the pltff. to the deft., in Oct. last, to quit possession of the premises on the 12th November, following.
For the deft., objection was taken that, the pltff. not having joined in it, her husband’s lease could only be binding during his life, and upon his decease it became absolutely void. The subsequent payment of rent, in the November following the death, was only paid to pltff. as executrix of the deceased, and from that time he was only a yearly tenant, and, therefore, was entitled to legal notice before he could be ejected. The pltff.s’ acquiescing verbally did not make the matter better, and could not confirm the lease so as to make it binding on the deft.
The deft. was ordered to give up possession of the lands.
From this order the deft. appealed, and the cause came on to be heard on the 12th December, 1844, when it was dismissed with costs, and the Deemster’s judgment affirmed.
HEYWOOD, D.
BLUETT for Pltffs. ; DIJMBELL and HARRISON for Defts.
Suit brought to recover £306, on account of their joint and several bonds. Wm. Comish, in 1839, gave his bond to the pltffs. for £200, and the defts,, at the end of the same bond, bound themselves jointly and severally to pay the amount, in his default. In 1840, he gave a further bond for £150 to the pltffs., and the defts. on the same day and date, gave a separate bond to the pltffs. binding themselves jointly and separately to pay the amount, with interest, in his default.
The defts. objected, that the pltffs. ought first of all to have sued Comish, the principal, and that a jury’s return was the only legal evidence of his default. That the practice of the Court was long since settled that both bail and principal should be sued together, and, therefore, the present suit must be dismissed.
For pltffs. it was replied, that Comish was notoriously insolvent, and that defts. being sued upon their bond, it might be a good defence for them to shew that Comish, the principal, had paid the money. It must be admitted that formerly where bail was often verbally and very loosely given, the Courts had ordered that all the parties should be brought into court together ; but here was a bond solemnly entered into, and pltffs. submitted that the onus lay upon the defts. to prove that they were not liable.
Per Curiam.—My brother Deemster and myself concurred in a rule, some time back, that both the principal and bail should be brought into court together, and I see no reason at present to alter that rule. If you will hand in the bonds, I will see if there is any ground of exception in this case, but at present I do not think there is.
NOTE.—The parties having settled the suit out of court judgment was never called for.
CORLETT, V. G.
DUMBELL for Pltff. ; FLEETWOOD for Deft.
This was an application, by petition, stating, that Margaret Kelly, the petitioner’s wife, was dead, intestate, leaving three children. That, on the 28th May, the petitioner applied in the usual form to obtain administration of the estate of his wife, but was opposed by the deft., who was the deceadant’s brother, and Christopher Karran, the Sumner of Braddan, was sworn in administrator in opposition to petitioner’s wish. That the deceadant’s estate consists only of one moiety of the petitioner’s personal estate after payment of debts and expenses. That petitioner is personally liable to all his creditors for payment of all his debts, and cannot be protected by grant of administration of his wife’s estate to any person, yet, by appointing a stranger to administer to the estate, the petitioner will have the whole of his personal estate taken out of his possession and disposed of, at the same time that he remains liable to pay every debt that such personal estate ought to discharge before his late wife’s estate can be ascertained, and petitioner would also be put to very heavy expense, which he ought not to sustain. Petitioner submitted that he was entitled to administration of his wife’s estate, and prayed a rehearing of the former application, and that the administration granted be set aside, and administration granted to the petitioner ; and, in the meantime, that the said Christopher Karran might be inhibited from interfering with the petitioner’s estate and effects.
DUMBELL, for petitioner, objected to the administration already granted, upon the ground, that the deceadant not having made a will and appointed an executor, the husband alone was entitled to administration as a matter of right. That although a wife might bequeath half of the joint estate of her husband and self to her children, yet that half could not be ascertained until the debts were paid, and then her representative, if she made a will for her children’s benefit, or the children themselves if she died intestate, would be entitled to one-half the net surplus of the estate, which they could compel the husband to account for and hand over, but the wife had no right to bequeath any specific half; viz., if there were two cows she could not bequeath one of them, nor could her executor come in and appraise the half of the personal estate in the husband’s possession. The husband is liable to pay all debts, and has a right to be left in possession of his business and property a reasonable time to wind up his affairs. No creditor has any claim against a man’s wife.
Per Curiam.—In this case a deed was set up and received as a testamentary paper ; the trustee named in that deed would not take administration, and the officer of the court was sworn. In Deemster Norris Moore’s time execution used to be granted for half the debt against the husband, and for the other half against the wife’s estate in the Deemster’s Court ; this was invariably the practice at that time. I will, however, take time to consider of my judgment.
On Friday the Court delivered its judgment :—" I have seriously considered this matter and I have also looked into decided cases in England. It appears that there, when a deed is not propounded as a will of a deceased wife, administration is not granted to the husband, but to the person beneficially interested under the deed. This is a case of the same kind ; £1400 is given by deed to the children of the deceased ; the trustee under the deed refuses to act, but produces the deed as the will of the deceased. The husband raises a dispute concerning this deed, and, pending that dispute, I feel bound to continue the officer of the court administrator pendente lile.
Hope, G.
DUMBELL for Pltffs. . BLUETT and GELL for Deft.
Demurrer for want of equity.
Bill was filed by complnt’s., co-administrators with the deft., seeking to bring the estate into this court to be settled and wound up, upon the ground, amongst other averments, that the deft. had obstructed suits being brought, had possessed himself of some of the property, and, in fact, obstructed the settlement of the estate.
It was argued, in support of the demurrer, that the complaints made by the bill could all be rectified in the Ecclesiastical Court, and, although it was addmitted that the Court had jurisidction, yet the Court would not interpose that jurisdiction to take the power out of the Ecclesiastical Court, unless application had previously been made to that Court, and it had failed to supply a remedy.
The demurrer was overruled.
6th November, 1845.
An application was made this day for a receiver as applied for in the bill.
Objected, that it would be unnecessarily interfering with the power of the Ecclesiastical Court.
The Court held the charges upon the face of the bill to justify the interference of the Court, and a receiver was appointed.
HOPE, G.
BLUETT and JEFFCOTT for Pltfl’s. ; DUMBELL and GELL for Defts.
Demurrer for want of equity and on other grounds were stated, but the cause going off upon the absence of any charge of fraud, the other points were not decided.
For deft., it was argued, that the bill sought to recover from the deft. the amount of a bond or mortgage, upon which the defts., when wardens, had lent the poor’s money, and it was alleged the security had failed ; but the bill contained no charge of fraud or misconduct against the defts., and, therefore, there was no ground upon the face of the bill for retaining the suit in Court.
Per Curiam.—I think there being no fraud or misconduct charged against the defts., the pltffs. cannot recover under this bill, and that the demurrer must be held good.
HOPE, G.
BANKING COMPANY.
BLUETT for Pltffs. ; DUMBELL, STEPHEN, and OTHERS for Defts.
Upon application to revive against Sir William Hillary, Bart., the executor of Sarah Ann St. John, formerly a party to the suit, and other executors of deceased parties.
Objected, that revivor would not lie, because the partnership was dissolved by the death.
Replied, that Sarah Ann St. John was a partner in the said company at the time the bill was filed. That, subsequently, a bill was filed by some of the partners to dissolve the partnership. Injunction was granted to inhibit the directors from carrying on the business of the company, and a receiver was appointed and had taken possession of all the books, papers, and property of the company, so that the company was, in fact, dissolved. The property of the deceased shareholder was liable for the debt claimed, and the executor is only a partner, as such, in order to charge the estate.
He is not charged as a partner in the company, but as the representative of a deceased party to the suit.
Objected, by DUMBELL, that the deft. Helen Garrett, against whom the complts. sought to amend the bill as executix of J. Q. Short, ought not to be made a party ; for although it must be admitted that an executor of an executor is the executor of the first testator, and ought to be so charged, if properly a party to any suit, yet that only applied to cases where there was but one executor surviving. In this case Mary Short was executor of J. Q. Short, deceased. Upon her death, H. R. Oswald and P. Garrett were appointed her executors, and were made parties to the bill in question, as executors of J. Q. Short, the first testator. Since then P. Garrett died, and the suit abated as to him ; and forasmuch as that Oswald was still surviving, the suit could not be revived against her as executrix of J. Q. Short.
QUAYLE, for Oswald, argued that Helen Garrett was as much executrix of J. Q. Short as Oswald was, and upon the same doctrine of law, viz., that the executor of an executor was the executor of the first testator no matter how far removed.
Held that the bill might be revived against all the other executors, but not against the deft. Helen as executor of J. Q. Short.
HOPE, G.
GELLING and QUATLE for Pltff. ; JETFCOTT for Deft.
The complnt. in this matter filed his bill, stating, on the 20th May, 1839, an execution in favour of James Clague v. Dinwoodie, since deceased, for £200, with interest and costs, subject to a deduction of £48, was placed in complnt’s. hands, as Coroner, to enforce. That, on the 24th of May, the deceased deft. delivered pawn and signed a minute of it himself on the face of the execution, whereby the whole of his effects became the right of the complnt. That the complnt. believing the deceased could get through his difficulties, did not enforce the execution, and Dinwoodie died without discharging the amount. It was argued that the signature to the pawn of deceased himself, was a full admission of the pawn, equal to the attestation of witnesses. The complnt. was made to pay the money, and, it was argued, he had a right to be paid in preference out of the deceadant’s estate.
For deft., it was argued, that it had been the universal practice, for many years, for pawn to be delivered to the Coroner in the presence of two witnesses ; that not having been done here, the written admission of the deft. on the execution did not cover the defect.
The Court held that the complnt. was entitled to be paid, out of the estate, the amount of his demand in preference.
CONSISTORIAL COURT, 27th Nov., 1845.
SHORT, B.
CORLETT, V. G.
CLUCAS for Pltff. ; LAMOTHE for Deft.
A petition was presented by Joseph Gawne, stating, that Margaret Gawne died intestate on the — April, 1845, whereupon the petitioner and other children became entitled to administration as next of kin. That at a Chapter Court on the 30th May last, the deft. obtained probate of a will, which petitioner had been informed was not executed by the deceased, and the petition prayed that the probate might be recalled, and that it might be decreed that the said Margaret Gawne had died intestate, and administration might be granted to the next of kin.
Upon the hearing of this petition, LAMOTHE, for deft., objected, that the matter was not cognizable in this court ; the will purported to have been proved before the Archdeacon, and probate granted by him, and, therefore, it could only be reviewed before him.
For petitioner, it was replied, that the Archdeacon had no authority to hold a court to try disputed wills, although he might sit as one of the members of the Chapter Court ; and, although by custom all wills were recorded half the year in the Episcopal Registry, and the other half year in the Archdeacon’s Registry, with his official. This, however, gave neither him nor his official any authority to try disputed wills.
LAMOTHE, in reply.—Abundant evidence would be found on record to shew that disputed wills, and even claims against estates, had been tried in the Archdeacon’s Court, and appeals had been broughtto the Staff of Government, from the judgment of the Archdeacon’s official, and such judgments were recognized there.
After taking time to consider, the Court made the following judgment :-
"The Court is of opinion that the evidence of such witnesses as may be adduced touching the validity of the will of Margaret Gawne, deceased, ought to be specially taken and committed to writing by his Reverence the Archdeacon’s Registrar, at such time and place as he may appoint, in order to a full investigation of the execution of the said will, and the same is, therefore, hereby so ordered, adjudged, and decreed accordingly.""THOMAS VOWLER SODOR and MAN.
"T. A. CORLETT."
At Kirk Michael, 26th Feb., 1846.
After evidence gone into before the Registrar, the case came on to be heard, this day, on the merits.
For the petitioner, it was objected, that only one witness had witnessed the will, which was insufficient, as the testatrix only put a x mark. Neither could it be said to be a nuncupative will, forasmuch as the paper propounded was written before, and not after, the alleged testamentary words were supposed to be spoken.
For deft., it was replied, that the will was equally good as a written, or as a nuncupative will. That, as a written will, it was as good with one witness as two, and by him it was fully attested in the presence of, and at the request of, the testatrix. As a nun-cupative will it was equally good, because the evidence was given to prove it within six months, and when that was the case, it did not matter when it was written before such evidence to prove it was given ; but if the evidence was not given until after the six months, then the law required that the testamentary words should have been committed to writing within ten days of speaking them.
After taking time to consider, the Court declared the document to be no will, and decreed administration to the next of kin.
HOPE, G.
Pltff. in Person ; BLUETT for Self and many OTHERS.
When this cause was called over at the first court, which was in October last, BLUETT appeared for himself and several other defts., and the appearance was duly entered upon the court minutes, but no motion was made either by complnt. or defts.
On this day, the 5th March, the complnt. moved for a rule pro confessio against the said defts.
This was objected to upon their behalf by BLUETT, who moved for time to plead, answer, or demur, upon the ground, that no motion had been made by either party up to the present time.
The Court ruled with the defts., and they were allowed time to plead, answer, or demur.
HOPE, G.
CORLETT and BLUETT for Pltff. ; GELLING and DUMBELL for Deft.
This was a Bill of Revivor, stating, that on the 4th March, I 844, John Collister had filed his bill against the deft., seeking to establish a claim to certain lands, called Eyrey Cushlan, in Patrick. That the said bill was answered and evidence gone into, and the cause set down to be heard, when the complnt. died, whereupon the suit abated. The Bill of Revivor then stated, that, on the 13th Dec., 1843, the said John Collister settled his right and interest in the premises upon the complnt., whereby he claimed to be entitled to the said lands, and to revive the said suit.
To this bill the deft. demurred, " that, by the complnt’s own shewing, the original bill filed by John Collister, was so filed after he had settled the premises claimed upon the complnt., so that he had no right to bring the said suit." "And, for further cause of demurrer, the deft. charged, " that any right which the said John Collister had to the said lands descended upon his death to his heir-at-law, and being then in suit, could not have been transferred by him, and it did not appear by the complnts.’ said bill, that the complnt. was the heir-at-law of the said John Collister, deceased."
Upon argument the demurrer was held good.
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