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[from Advocate's Notebook, 1847]
HOUSE OF KEYS, 18th March, 1846.
CORLETT and QUAYLE for Pltff. ; BLUETT for Deft.
The respndt. Cottier filed his declaration at Common Law, in Hillary Term, 1843, claiming a parcel of Abbey Lands, in the parish of German, called Quayle’s Lands, of the annual rent of three halfpence, as grandson and heir-at-law of Philip Cottier, jun., upon whom Philip Cottier, sen., had settled the estate of Knocksharry, together with the lands in dispute, by the following deed :— "Know all men by these presents, that I, Philip Cottier, of Knocksharry, in the parish of German, with the consent of my wife, Elizabeth Cottier, alias Craine, do hereby settle and estate upon our son, Philip Cottier, jun., his heirs, executors, administrators, and assigns, all our estate of Knocksharry, and also all our houses and lands, both in Kirk German and Peeltown, to be his and his heirs for ever after the death of the longest liver of us, said Philip Cottier and Elizabeth my wife. And we do also jointly agree, that our said son shall enter into immediate possession of that part of our estate of Knocksharry, known by the name of Thaloo Varl and the Hough underneath the same, Thaloo Eale, Cain’s Meadow, Faie-e-Crink, Cowley’s Croft, Crot-e-Corris, and Boorley-ne-Braine, and also the half of the corn in the haggard. And I, the said Philip Collier, jun., do hereby bind and oblige myself, my heirs, executors, administrators, and assigns, to settle and estate the aforesaid premises on my lawful issue and heir. And I, Philip Quirk, of the parish of Patrick, father of the wife of the said Philip Cottier, jun., for and in consideration of the aforesaid settlement, do bind and oblige myself to give unto him, the said Philip Cottier, my son-in-law, in marriage dowry with my daughter, the sum of £80, two horses, two cows, twelve sheep, and one feather bed ; and if my said daughter, Ann Quirk, shall die without issue, she shall be at liberty to will the sum of £30 to whom she shall think fit and proper ; and if she shall die within a year and a day after their marriage, then, and in that case, her aforesaid marriage dowry shall re turn back again. And the said Philip Cottier, jun., and wife, shall have the old dwelling house and a cow house for their use, with all easements, liberties, and properties. And for the punctual and faithful performance of all things herein mentioned and expressed, all parties concerned do bind and oblige themselves, their heirs, executors, administrators, and assigns, each to the other in the penal sum of £200 sterling, to be levied according to law. In testimony whereof they have hereunto subscribed their names or marks, this I 5th day of November, 1784."
" Philip Cottier, jun., my mark,
" Elizabeth Cottier, alias Craine, my x mark,
"Philip Cottier,
" Philip Quirk.
" Signed and delivered in the presence of
"Thomas Witham,
" Mathew Cowell,
" Sylvester Mylchreest."
The Pltff’s. case rested mainly upon the obligation entered into by Philip Cottier, jun., to settle the said premises upon his " lawful issue and heir ; and it was argued, for the pltff., that Philip Cottier, jun., took only a life interest in the estate.
It was shewn in evidence, that in 1795, P. Cottier, jun., sold to James Craine " all the right, title, interest, and property, which he had, or thereafter might, could, or ought to have" in the said lands ; and it was contended, by deft., that this was an absolute sale of the fee simple of the said lands,—whereas the Pltff. contended, that " all the right, title, and property" of the said Philip Cottier, jun., consisted of his life interest, and the grant to Craine could convey no more. In 1796, Cottier, sen., died, leaving Elizabeth , his widow, surviving. On the 24th Sept., 1808, Philip Cottier, jun., executed a deed in favour of his eldest son and pre sumptive heir, John Cottier, whereby, after reciting the deed of the 15th Nov., 1784, and stating that it was " in order to carry it into effect" he settled the lands in the said deed mentioned, including the lands in dispute, upon his said son, and in consideration of £50 paid by John to the use of Philip, it was agreed upon in and by the said deed, that John should obtain possession of one-half of the said lands upon the death of Elizabeth, widow of Philip, the original grantor, (who then possessed one-half) and the other half upon the decease of Philip Cottier, jun.
It was argued, for pltff., that this deed clearly shewed Philip Cottier, jun’s., view, both of the deed of 1784, and his own deed to Craine, of 1795, for in express words he seeks to carry the first into effect according to the conditions upon which he took the property, and conveys to his heir the one-half upon his mother’s death, whenever that might happen ; but the other half, not until his own death, having already parted with his life interest to Craine.
For deft., it was contended, that this deed of 1808, was mere waste paper. That the alleged "obligation" in the deed of 1784, was at best but a mere covenant, for the breach of which, even if binding, the only remedy would be an action at law, and that Philip’s view of his own case was better gathered from his act in selling the property to Craine in 1796, which, once done, no subsequent deed made by him without the privity of Craine, could ever affect Craine, or those claiming under him.
To which it was answered, that the "obligation" refered to was not a mere "covenant" but a " condition" upon which alone the grantee obtained his title to the property.
But this was denied, in reply, and it was argued, that it was not stated in the deed to be a condition precedent, but on the contrary, was, without reference to, and, in fact, followed after an absolute grant of the lands to the grantee and his heirs for ever, which being complete and perfect in all legal form of words, could not be affected by any subsequent covenant, unless it contained very clear and express words, shewing the intention of the grantor to make void the deed unless that covenant was fulfilled. In 1810, Elizabeth, the old widow, died, and John Cottier then possessed her right in Knocksharry, as granted by the deed of 1808. On the 16th Feb., 1811, James Parr Craine, to whom (under the name of James Craine) Philip Cottier, jun., had sold his right in Quayle’s Lands, granted and executed a deed to the said John Cottier, in the following words:.—
" Whereas Philip Cottier, by deed of the 14th Oct., 1795, for the consideration of £31 10s. British, bargained and sold to James Parr Craine certain parcels of land, called Quayle’s Lands, and, whereas, some doubts have arisen whether the said Philip Cottier had a right so to sell or dispose of the said premises, and that, to avoid disputes, John Cottier, son of the said Philip Cottier, who is the right heir~ according to law, of the said Philip Cottier, and is well entitled to the said lands, but, to avoid disputes, and law suits, hath agreed with the said James Parr Craine to repay him the sum of £60 British, being the sum alleged by the said James Parr Craine to have been advanced by him on account, or in consequence of such sale. Now, know all men by these presents, that the said James Parr Craine, with the consent of Elizabeth Craine, alias M’Ewan, alias Quilliam, his wife, for and in consideration of the said sum of £60 British, to him in hand, paid by the said John Cottier, hath given, granted, quitted claim, and sold, and by these presents doth give, grant, quit claim, and sell unto the said John Cottier, his heirs, executors, and assigns, all and singular, his, the said James Parr Craine’s, right, title, interest, and property, in and unto that part or parcel of land that he purchased or otherwise obtained from the said Philip Cottier, by deed, dated 13th October, 1795, situate in the parish of Kirk German, known by the name of Quayle’s Lands."
The deed further contained the usual formal covenants for quiet enjoyment and due performance, &c.
For deft. it was urged, that this deed conveyed Quayle’s Lands to the pltff’s. father absolutely in fee, as purchased lands. Whereas the Pltff. argued that Philip Cottier, jun., having only a life interest in Quayle’s Lands to sell, James Parr Craine had only a life interest to reconvey or " quit claim" unto, and, therefore, the deeds of 1795 and 1811 did not alter the rights of the parties, although the deed of 1811 very clearly shewed the feeling and belief of the family and friends in 1811, that Philip Cottier, jun., had only taken a life interest in the property. On the 22nd October, 1820, the said John Cottier died, leaving Charlotte Cottier, his widow, and the Pltff., then an infant. On the 28th Dec., 1822, Charlotte, the widow, married Thomas Quay, and these last named two, in 1826 and 1828, mortgaged the one-half of the premises in dispute to the applnt. In 1832, John Caley, Coroner, having executions in his hands against the said Thomas Quay, put up for sale, and sold the lands in dispute, and the complnt. bought them. It was not until 1836 that Philip Cottier, jun., died, and in 1840 pltff. came of age, and supposed himself to have become entitled to the one-half of Quayle’s Lands, as purchased lands by his father, and that the applnt. was entitled to his mother’s half in manner aforesaid ; and under this impression he entered into an arrangement with the applnt. to purchase from him the half of Quayle’s Lands which had been his mothers, and executed a deed on the 18th Aug., 1842, whereby he refered the price to be paid for it, to the arbitration of persons named therein.
It was urged, for the applnt., that the respndt., in the said deed of reference, in express words, admitted the applnt’s. right to the lands in dispute.
But to this it was replied, that the admission was made by a young heir only just come of age, and, therefore, wholly ignorant of his legal rights, as was clearly manifested by his subsequent acts ; for, finding what his rights were before the reference was gone into, he refused to ratify the agreement, and brought his present action at law to recover the premises, whereupon the applnt. filed his bill in the Court of Chancery, seeking a specific performance of the agreement of 1842, and an injunction to restrain the respndt. from proceeding with his action at law.
The respndt. answered the bill.
Upon a hearing the Court refused to grant injunction,
Whereupon the present cause proceeded, and it was argued, that this decision of the Chancery Court was in favour of the respndt’s. case.
The cause came on for a hearing, at Common Law, on the 4th July, 1843, when the arguments here interwoven with the statement of facts, were advanced by the respective parties, and several cases were quoted, but more particularly that of Quilliam v. Teare and Quirk was relied upon by the applnt., and, upon his behalf, it was alleged, that in that case Henry Quilliam, in 1797, made a settlement, upon his son John Quilliam, of certain lands and premises, and Robert Fargher, father of John Quilliam’s wife, also joined in the deed, and gave a dowry of £40 to the young couple. Half of the lands were granted in present possession, and half at the decease of the grantor ; and in the deed it was distinctly expressed, that the lands were settled upon the " heir of the said John Quilliam and Isabella his wife, who were to possess the said premises, and to run and stand in the nature of inheritance." And it was further covenanted in the deed, in express words, " that in case the said John Quilliam and Isabella, his wife, should have no surviving issue, the marriage dowry was to return to the said Robert Fargher," which clearly shewed that the whole intention of the parties was to secure only a life interest to the grantees, John Quilliam and Isabella, his wife, with remainder over to the lawful issue of their marriage and their heirs for ever. That there was issue of that marriage one son, William Quilliam, the Pltff. in the said suit; notwithstanding which the said Henry Quilliam and John Quilliam, disregarding the said restrictive clauses, joined in a deed of sale of the granted premises to Silvester Teare, but the said Isabella Quilliam did not join in the deed. Teare mortgaged the premises, and subsequently they were sold by the Coroner for payment of his debts, and the said Teare and Quirk became the purchasers. During the minority of William, both Henry Quilliam and John Quilliam died, and when William came of age he brought his suit against Teare and Quirk to recover the premises, relying upon the said deed, and that he was the only issue of that marriage. The jury at-law, on the 10th Oct., 1837, found for the pith’., but the House of Keys, on the 1st March, 1839, reversed the verdict; and, therefore, the applnt. relied upon this as a case in point.—See Lib. Pli., 1837.
For respndt. it was argued, that the case of Quilliam v. Teare and Quirk established nothing, for there the deed (as was usual with the country people) had been written by some country scribe, and was so informal, it was impossible to make sense of it. In the first or granting part of the deed, the property was named, but it did not say upon whom it was settled, and the fact was to be gathered only from inferences to be drawn from other parts of the deed ; and in a subsequent part of the deed the parties were named, but the property was not. The deed was not, in fact, a legal conveyance of any thing, and, therefore, it could not be carried into effect. (See this deed at length, page 93.) But the respndt. argued that the case of Lamothe v. Christian and Clark, trustees of Camaish was strictly in point to the respndt’s. case. In that case the deed was also written by a country scribe, and was what was commonly called "a bargaine," or family settlement. It was, in substance, as follows:
—William Camaish, sen., (who had inherited the lands of Kionlough, in Bride,) on the 18th August, 1807, " gave, granted, passed over, and settled the said lands upon his son, William Camaish, his heirs and successors, one-half in present possession, and the other upon the decease of the survivor." Then came the following clause :—" And be it hereby further known, that he, our said son, William Camaish, jun., do hereby bind and oblige him, that he will not dispose of any part or member of the said granted and settled premises, by way of sale or mortgage, or any other conveyance whatever, but that the same shall descend and devolve as inheritance to the heir-at-law, and to no other ; and in consequence hereof I do hereby deliver a piece of coin, called an English shilling, as possession, seision, and delivery of these presents." This deed was signed by both the grantor and grantee. William Camaish, sen., died, and thereupon the said William Camaish, jun., possessed the whole estate, and, on the 3rd August, 1815, presented a petition to the Governor reciting the title he had to the property, and praying leave to raise a certain sum of money, by way of mortgage, on the premises, which the Court granted accordingly. Afterwards, becoming involved in his circumstances, he was imprisoned for debt, and on the 18th June, 1836, he sold the estate in question to Daniel Christian and Evan Clarke, as trustees, for the benefit of his creditors. The trustees sold the said lands in parcels, by public auction, and Lamothe, the applnt., purchased a parcel of the said lands at £15 10s. per acre ; but afterwards, ascertaining the true title, Lamothe refused to complete his purchase. Whereupon the trustees summoned him before the Deemster, with notice to the heir presumptive of William Camaish. The Deemster, upon a hearing, granted an execution against Lamothe for £439, the consideration money of the said purchase. From this judgment Lamothe appealed to the Staff of Government, and, upon a hearing, on the 3rd of August, 1837, Lamothe argued that the deed of settlement of 1807, only gave Camaish, jun., a life interest in the property, and, therefore, he had no power to sell to the trustees, nor the trustees to the applnt. The Appellate Court held with the applnt. and reversed the Deemster’s judgment, and Corlett for the respndt., urged that this was completely a case in point with that before the Court.—See Lib. Scac. 1837.
For the applnt. it was replied, that the two cases were very different. The grantee, Camaish, jun., having firmly bound himself in the deed under which he took the property, " not to dispose of any part or member of the granted and settled premises by sale or mortgage, or any other conveyance whatever, but that the same should descend and devolve as inheritance to the heir-at-law, and to no other." And it was argued that the grantee’s application to the Governor to raise money, and the Governor’s decision thereon, fully established the fact of his only taking a life interest.
Upon a hearing, at Common Law, the jury found for the pltff. Cottier, with costs.
18th March, 1846.
From this verdict the deft. Gelling appealed to the House of Keys, and, upon a hearing, the jury’s verdict was reversed.
HOUSE or KEYS, 18th March, 1846.
CORLETT for Plnff. ; BLUETT for Deft.
This was an appeal from a verdict at Common Law.
DUMBELL had filed a declaration for John Cottier, the pltff. in the court below, seeking to recover a certain parcel of the quarterland of Ballakermeen, in Peeltown, a parcel of intack land, No. 63, and certain cottage lands, Nos. 22 and 23, of the respective rents set forth in the declaration, which he charged that Ellinor Cannell, the then deft., unjustly withheld from him.
9th May, 1843.
The jury, upon a hearing, found a verdict in favour of the pltff., and from that judgment the present appeal was entered.
Before the appeal was brought to a hearing, Ellinor Cannell, died, and the appeal, by petition to the Governor, was revived in the name of John Cannell, heir-at-law of Ellinor Cannell.
On the 15th November, 1784, Philip Cottier, sen., and Elizabeth, his wife, Philip Cottier, jun., their son, and Philip Quirk, executed the deed of settlement already set forth at length in the preceding case. (See page 436.)
It was made an important feature in this case, (not proved in the former one,) that Ann Quirk, the wife of Philip Cottier, jun., mentioned in the said deed, died shortly after the marriage, having had but one child, who also died young.
Philip Cottier, jun., then married a second wife, Margaret, by whom he had issue John Cottier, sen., the father of the Pltff., born in July, 1787.
In 1796 Philip Cottier, sen., died, leaving Elizabeth, his wife, surviving. The property in dispute had originally fallen to her as inheritance.
On the 19th Dec., 1800, Elizabeth joined her son Philip, jun., in a sale of " all the right, title, and interest, which he had or could have in the lands in dispute" to William Cannell, the late husband of the deft. Ellinor in consideration of £89 cash, and an annuity of £7 7s.
On 24th September, 1808, Philip Cottier, jun., executed the deed of settlement in favour of his son, John Cottier, (also referred to in the former case,) intended to carry into effect the settlement of 1784.
In 1810 Elizabeth Cottier died. In 1820 John Cottier, sen., died, leaving the Pltff., a minor, him surviving.
In 1836, Philip Cottier, jun., died, and the pltff. after he came of age, received a portion of the annuity of £7 7s.
The same question was raised in this as in the former case, as to the obligation entered into by Cottier, jun., to settle the premises " upon his lawful issue and heir" and the same arguments were used pro. and con. ; varied, however, by the two facts of the failure of issue of the first marriage, and receiving the annuity.
It was argued for the applnt. that the respndt. having received the annuity after he came of age, it was such an acquiescence on his part in the sale made by his father to William Cannell, deceased, as to estop him from setting up any claim to the property.
It was replied that the act was done soon after he became of age, and that he was wholly unacquainted with his legal rights.
It was relied upon by CORLETT, for the applnt., that the parts of the deed of 1784, were perfectly distinct in their nature. The first part, was as follows :—." Know all men by these presents, that I, Philip Cottier, of Knocksharry, in the parish of German, with the consent of my wife, Elizabeth Cottier, alias Craine, do hereby set-tie and estate upon our son, Philip Cottier, jun., his heirs, executors, administrators, and assigns, all our estate of Knocksharry, and also all our houses and lands, both in Kirk German and Peeltown, to be his and his heirs, for ever, after the death o~ the longest liver of us, the said Philip Cottier and Elizabeth my wife. And we do also jointly agree, that our said son shall enter into immediate possession of that part of our estate of Knocksharry, known by the name of Thaloo Varl and the Hough underneath the same, Thaloo Eale, Cain’s Meadow, Faie-e-Crink, Cowley’s Croft, Crot-e-Corris, and Boorley-ne-Braine, and also the half of the corn in the haggard." This, it was contended, was an absolute grant of the lands mentioned in it to Philip Cottier, jun., and his heirs for ever, without the smallest restriction, or qualification, or power of revocation. It was in every respect a perfect conveyance of the entire estate, subject only to a life interest in the grantors.
The next part of the deed was equally distinct in its nature, and was as follows
"And I, the said Philip Cottier, jun., do hereby bind and oblige myself, my heirs, executors, administrators, and assigns, to settle and estate the aforesaid premises on my lawful issue and heir. And I, Philip Quirk, of the parish of Patrick, father of the wife of the said Philip Cottier, jun., for and in consideration of the aforesaid settlement, do bind and oblige myself to give unto him, the said Philip Cottier, my son-in-law, in marriage dowry with my daughter, the sum of £80, two horses, two cows, twelve sheep, and one feather bed ; and if my said daughter, Ann Quirk, shall die without issue, she shall be at liberty to will the sum of £30 to whom she shall think fit and proper ; and if she shall die within a year and a day after their marriage, then, and in that case, her aforesaid marriage dowry shall return back again."
It was argued, for the applnt., that this was nothing more than an agreement between Philip Cottier, jun., and his father-in-law Quirk. We may suppose them agreeing thus :—" Do you settle the lands, which your father has settled upon you, upon the issue and heir of your marriage with my daughter, and I will give you a marriage dowry with her ; but if she dies within a year and a day after, the dowry is to return to me." And it was submitted that this was the plain common sense of the matter, and a complete answer to every objection. Philip Quirk’s daughter and her issue being both dead, the covenant entered into by Philip Cottier, jun., with Philip Quirk fell to the ground, as a matter of course ; and then the grant from Cottier, sen., being absolute and unrestricted, Philip Cottier, jun., had a right to sell the estate, and having exercised that right in legal form, the pltff. had no cause of suit, and the judgment of the court below must be reversed.
BLUETT, for the respndt., contended, that the applnt’s. mode of dividing the deed was contrary to all the ordinary rules of construction. In any grant of real property there might be conditions precedent, or covenants appendant to the grant ; but however many might be the parties to the deed, or numerous the other objects of the conveyance, all clauses, covenants, and conditions, affecting the real estate, must be looked upon as being made between the grantor and the grantee, unless especially expressed to the contrary ; any other mode of construction must lead to uncertainty and confusion. In the present case there was no room whatever for the applnt’s. conjecture ; for the condition to settle the property upon the lawful issue and heir was not a detached section of the deed, but followed immediately upon the grant itself, and was joined to it by the conjunction "and," which clearly shewed that it was a condition of the grant ; and as the ancestor had a right to impose what conditions he pleased, and the grantee being a free agent had elected to take the estate upon the terms set forth, and had signed the deed to that effect, he could not afterwards, by any deed of his own, make to himself a better title than he had agreed to receive from his father. The other view taken by the applnt. was equally fallacious, for the wording of the deed was quite contrary to the agreement fancifully supposed between P. Quirk and his son-in-law. The words were not "I bind myself to settle the said premises upon our lawful issue, or the lawful issue of the said P. Cottier, jun., and Ann Quirk," or any words to that effect ; but the words are "and I, the said P. Cottier, jun., do hereby bind and oblige myself, heirs, executors, administrators, and assigns, to settle and estate the aforesaid premises on my lawful issue and heir." These words clearly negatived all idea of a limited agreement with Quirk the father-in-law, and shewed an equally unlimited condition with his own father the grantor ; for the words " my lawful issue and heir" would refer to issue by any other marriage, and, therefore, explained the intention of the grantor, and shewed the connexion between the condition and the grant which could not be severed. The verdict was, therefore, well founded, and must be supported.
18th March, 1846.
The cause was heard this day, and, after much consideration, the Keys reversed the verdict of the Court below.
Note.—In Trinity Term, 1843, the same pltff., John Cottier, brought his action against Margaret Cottier, his grandfather’s widow, she having been his second wife. The same deed of 15th November, 1784, referred to in the two preceding cases, was also the foundation of this one. By that deed, the quarterland estate of Knocksharry was settled by Philip Cottier, sen., and Elizabeth, his wife, upon Philip Cottier, jun., their son, part in present possession, and part upon the decease of the survivor of the grantors.Shortly after his marriage Philip Cottier, jun’s. first wife died, having had but one child who died young. Philip Cottier, jun., then married the deft., by whom he had issue one child, the pltff’s. father.
On the 24th September, 1808, Philip Cottier, jun., in order (as alleged) to carry into effect the deed of 1784, made a deed of settle-meat of the said premises upon John Cottier, sen.,his son, the father of the pltff., one-half upon the decease of the said Elizabeth Cottier and the other half upon his the said Philip Cottier’s own decease. Margaret did not join in this settlement.
In 1810, the said Elizabeth died, and John Cottier, sen., then divided the said lands of Knocksharry with his father.
In 1820, John, sen., died (before his father Philip) and the pltff. then inherited the half his father had possessed.
On the 19th May, Philip, jun. died, and his wife, the deft. remained in the quiet possession of that clear half which her husband possessed.
The pltff. then brought his suit to recover one-half the lands from her, upon the ground, that she, being a second wife. could only have dower in one-quarter of the estate which her husband possessed at the time of his decease, but, it was urged, that, although not in possession, he was entitled to the whole of the said estate, subject only to his grandmother’s life interest ; and as the first wife died without issue, the second was entitled to the same rights as the first would have been, and the grant of his right by Philip Cottier, jun., to his son, not having been joined in by Margaret, could not in any manner affect her rights.
The jury on the 4th July, 1843, dismissed the cause.
And the Keys on the 18th June, 1844, confirmed the verdict.— See John Cottier v. Margaret Cottier, Lib. Pli., July, 1843.
In the foregoing case of Cottier v. Cower, the case of Radcliffe v. Radcliffe was cited. In May, 1803, Charles Radcliffe, sen., and Christian, his wife, settled Ballakilley on their son Charles, jun., on his marriage with the Pltff., one-half to be possessed upon the decease of Alice, his grandmother, and the remainder upon the decease of the survivor of the grantors. Charles Radcliffe, jun., the grantee, died in 1807, without having possessed any part of the property. Alice died in 1810, when a division was made by the Setting Quest, and the pltff. obtained one-quarter for herself, and one-quarter for the heir, the deft. Christian Radcliffe died in 1823, and Charles, sen., died in 1826, and the present suit was brought by the widow Catherine, to recover another quarter of Ballakilley. Upon a hearing on the 28th Oct., 1828, the jury found her entitled to one-half of Ballakilley as a widow-right, but the Keys, on a hearing on the 11 th Nov., 1829, reversed the verdict. Lib. Pli., 1828.
CONSISTORIAL COURT, 26th March, 1846.
SHORT, B.
CORLETT, V. G.
BLUETT for Pltff. ; LAMOTHE for Defts.
The pltff., the Rev. John Stowell, presented the defts. for living together in a state of incestuous intercourse, the deft. Gell being the daughter of the deft. Morrison’s late wife deceased.
It appeared in this case, that the deft. Morrison had obtained the Bishop’s license to marry the other deft., the following affidavits having been made :—
"I, John Morrison, of German, do swear that I am a widower, of twenty-one years and upwards, and that Sarah Gell, of the said parish, is a spinster, of the age of twenty-one years, and upwards, and that we intend to proceed to the solemnization of true, pure, and lawful matrimony, and that I know of no impediment, by reason of pre-contract, consanguinity, affinity, or any other lawful cause whatever, why we should not be joined together in that holy estate, and that there is no suit at present pending in the Ecclesiastical Courts touching the same."
" So help me God."
" JOHN MORRISON."
"Sworn and signed before me at the Episcopal Registry, this 18th day of Dec., in the year of our Lord, 1843."
" R. BROWN, D.E.R."
" I, Thomas Quine, of Peeltown, do swear that Sarah Gell, of German, is a spinster, of twenty-one years of age, and upwards, and has authorised me to join in her name in making this application for a special license to be united in holy wedlock with the said John Morrison, widower."
" So help me God,"
"THOMAS QUINE."
" Sworn and signed before me, this 13th day of December, in the year of our Lord, 1843."
"R. BROWN, D.E.R."
The fact of affinity being proved, it was argued, for the petitioner, that the Statute of 1757 regulating marriages, recognized the Canons of 1603, and that by the tables of consanguinity and affinity a man was prohibited from marrying his late wife’s daughter. This was consistent also with the Common Law of the land, as proved by many decided cases in the times of Bishops Wilson and Hildersley, before the Statute of 1757 was passed.
For the defts., it was replied, that, having obtained the Bishop’s license, they were lawfully married under his authority, and the marriage could not now be set aside.
26th March, 1846.
Upon a hearing, the Court declared the marriage void, and ordered the defts. to enter into bonds, in the Rolls’ Office, in £50 each, with sureties, that they would not cohabit together, to pay costs, and to attend personally before the Bishop to be admonished.
HOPE, G.
Pltff. in Person.
This was the fifth court. The Pltff., on filing his bill, presented his petition, praying for substitution of service upon John Cannell for Adolphus M’William, one of the defts., who was off the Island. The order was obtained in October, a continuance in November, and two successive attachments were obtained in December and February, by service on the substitute. On the 5th March, 1846,
Pltff. moved for and obtained a rule pro confesso ; and on this day (2nd April) the pltff. moved to have the rule made absolute.
The Court held that there not having been any appearance entered for the deft., in person or by substitute, the rule pro confesso must be served first.
The cause was continued to serve the rule accordingly on the substitute.
Heywood, D.
DUMBELL for Pltff.; CRAIGIE for Deft.
DUMBELL, for the pltff.—This was an application, by petition, stating, that on the 7th April, 1844, an arrest, at the suit of Christopher Imeson, against Mary Ritchie and Isabella Ritchie for the sum of £12, rent to become due on the 12th of May following, was placed in the Pltff’s. hands to be enforced. That the pltff. proceeded to the premises mentioned in the arrest and, with a jury, appraised certain articles mentioned in the petition ; and, thereupon, the deft. became bail for the forthcoming of the said several articles, and signed a bond to that effect on the 19th April, 1844. On the 20th May, Imeson obtained execution for the rent, with costs, which was duly enforced, and a jury’s return obtained of no effects. The principal having thus made default, the petitioner now prayed that the deft. might be ordered to deliver up the goods arrested, or pay the amount of the execution.
For the deft., it was objected, that, from the lapse of time that had ensued, the bail was released.
For the pltff., it was replied, that due diligence had been used in obtaining execution against the principal, and in following it up to a jury’s return. If the pltff. had neglected to follow up the arrest by obtaining execution against the principal when the rent became due, it might have been argued that the arrest had been abandoned ; but here the bail was in writing, and the arrest duly followed up, and the bail could not complain that time had been given her to pay the money.
The Court granted an order for the delivery of the goods or payment of the money.
NOTE—A similar application was made in the suit of Kneale, Lockman, . and Donaldson v. Cowin and Johnson ; but in that case it appeared that the arrest was not followed up by execution against the principal until nearly two years after the arrest was taken out, and, upon a hearing, in May, 1846, Deemster Heywood refused to grant judgment against the bail.
HOPE, G.
STEPHEN for Pltffs. ; DUMBELL for Defts.
This was the third court, and pltffs. moved for a rule pro confesso.
DUMBELL appeared for defts., and moved for time to plead, answer, or demur, relying upon the rule of court of the 2nd March,
1848.
At a Chancery Court, holden at Castle Rushen, the 2nd day of March, 1843,—" It is hereby ruled, that after the 2nd process of attachment has run out on bills in equity, a rule pro confesso shall issue against every deft. who shall refuse or neglect to make an appearance at the third court ; to the end that if the deft. do give in an answer within such time as the Court may direct, the cause may be heard, upon bill and answer, at the fourth court ; and if the deft. do not answer, that the rule pro confesso may be made absolute, and the cause set down to be heard. And that after an appearance has been entered, and a deft. allowed time to plead, answer, or demur, and has neglected to do so, the deft. shall be ordered to give in his or her answer within such reasonable time, according to the circumstances of the case, and on such terms as the Court may think fit to direct ; and if such answer be not given in within the time limited, that the bill shall be taken pro confesso, without any other or further service. And if the complnt. cannot proceed to a hearing, without the discovery sought for by the deft’s. answer, that in such case, as well as in every other case where service of a rule of court is directed or required, service of an office copy of the rule only, with style of the cause in which the same is made, shall be held to be sufficient service, so as to proceed against the party neglecting or refusing to comply therewith for contempt. And it is also ruled, that when execution shall be awarded on any decree or judgment of this court, a minute of such execution, and the date thereof, shall be entered at the foot of the original decree, or judgment, in the Rolls’ Office, and that no subsequent execution shall be granted on any such decree, but upon cause shewn under the petition of the party applying for such execution."
"J. READY."
By the first clause of the new rule it was only in default of an appearance by the deft. at the third court, that the complnt. was entitled to a rule pro confesso ; but where appearance was made at the third court, the deft. was entitled to obtain a rule to plead, answer, or demur.
The Court held with the deft., and allowed him time to pleads answer, or demur.
HOPE , G.
STEPHEN for Pltffs.
This was the third court, and there not being any appearance for the deft. Tupper, complnts. moved for a rule pro confesso against him, and that the deft. might be limited to the next court.
Per Curiam.—The Court will consider what is a reasonable time, and the rule must in this case be served, as there is no appearance.
Hope, G.
DUMBELL for Pltffs. ; BLUETT for Deft.
At the last court, deft. was ordered to give in his answer before this court, and having neglected to do so, complnt. moved to have the bill taken pro confesso, and so entered upon the court minutes, and that the cause be set down to be heard next court.
Per Curiam.—The bill is taken pro confesso by operation of the rule, and no entry need be made on the minutes, but care will be taken of the matter in the decree. The cause is set down to be heard, as of course, next court.
HOPE, G.
WILSON for Pltff. ; BLUETT and DUMBELL for Defts.
At the first court, defts. appeared, and moved for time to plead, answer, or demur, and, at this court, the complnt. moved that the the defts. be limited to put in their answer.
Objected, that the complnt. had not yet moved to have the defts. enjoined to answer, and, therefore, could not move to have them limited.
WILSON, for complnt., submitted, that the defts. having appeared and moved for time to answer, it was unnecessary for the complnt. to have them enjoined to do that which they expressly prayed to be allowed time to do. The one motion was tantamount to the other.
The Court held with the complnt., and ordered the defts. to answer before the next court.
STEPHEN for Pltffs. ; DUMBELL for Defts.
Two attachments had been obtained against the deft. Hinds at the two preceding courts, and this being the third court the complnt. moved for a rule pro confesso.
DUMBELL, upon behalf of the deft. Hinds, objected to any motion being made against his client. He was ready to appear for ~ him if he had been summoned, but that was not the case.
STEPHEN.—Under the new rules it is ordered, "that after the second process of attachment is run out, a rule pro confesso shall issue against every deft. who refuses or neglects to appear."
Per Curiam.—No doubt that is the rule in case the deft. does not appear, but then he must be noticed to appear. If he is not summoned he is certainly not bound to appear, and no motion can be made against him.
STAFF OF GOVERNMENT, 5th Feb., 1847.
DUMBELL for Pltff. ; GELL for Deft.
Deft. became bail for Margaret Skillicorn for the clue prosecution of her appeal, in a case wherein the petitioner was respndt., and for the payment of costs, if awarded, in the usual form, The appeal was dismissed with costs, and an execution for costs enforced against the applnt., on which execution~ a jury’s return of " no effects" to discharge the same was made. The present application was brought to compel the deft., as bail, to pay the costs of the appeal~
GELL, for deft., submitted, that the petitioner had not gone far enough to establish Skillicorn’s default in the non-payment of the costs. The jury’s return is not sufficient. The petitioner must proceed to the imprisonment of Skillicorn, before he can look to the deft.
DUMBELL contended, that although by the Statute of 1820, the petitioner might imprison Skillicorn if he thought proper, yet it was not compulsory for him to do so.
The Court was of opinion that the jury’s return was sufficient evidence of Skillicorn’s default, without the petitioner proceeding to imprison her.
Order against deft. as prayed for.
CORLETT, V. G.
STEPHEN for Pltff. ; DUMBELL for Defts.
The Pltff. in this case sought to recover two several sums of money ; £50 the balance of a promissory note granted by the said
Thomas Craine, deceased, to Mary Craine, the pltff’s. late wife, and £10, a legacy bequeathed to her by Letitia Craine, also deceased
DUMBELL, for deft., objected to the joinder of these demands~ in one suit. They were, in point of fact, separate and distinct claims against separate and distinct persons, and the accounts, it might be, kept at two different registries, the Bishop’s or the Archdeacon’s, according to the time of the deaths of the parties.
The suit was brought by the Pltff., as administrator of the legatee, and not as the executor of Letitia Craine, and therefore the claim of the legacy brought by him was clearly out of the question, and not at all before the Court. Then as to the other claim for the note. Thomas Craine died in 1835, and probate of his will was granted to the deft. Ann, in a very few weeks after. If then the Pltff’s. claim could be maintained in any court, it clearly was not cognizable in the Ecclesiastical Court, it being not less than twelve years since the administration was granted. But moreover, it appeared upon reading the note, that the pltff. had no right to sue for it in his capacity of administrator of his late wife, for the note purported and was expressed to be " to Mary Craine, as wife of Thos. Craine." The money, therefore, or the note, became his immediately it was passed to her.
STEPHEN..—The executor of an executor is the executor of the first testator.
Per Curiam.—.That point is well settled ; but then you must sue him as such.
STEPHEN.—Then we are right in our course ; for Quilliam’s wife being sued as executrix of Thomas Craine, who was executor of Letitia Craine, she is, in law, the executrix of Letitia Craine, and it was by no means necessary so to style her in the warrant. As to the plea of the Statute of Limitations, it was sufficiently answered by the fact, that Mary Craine lived and died beyond the seas, and administration was not taken to her estate until 1846. The Statute of 1738 limited the entry of claims in the Spiritual Court ; but then there was a saving clause also in favour of persons under coverture, non compotes mentis, beyond seas, or imprisoned, each of which class of persons may sue as soon as the disabilities are removed, provided it be done within the time limited by the act, which in this case has been done.
Per Curiam.—I feel bound to stop this case. I cannot take cognizance of it on account of the lapse of time. In reference to the first item—the demand for the promissory note, the pltff. should have sued for it in his own name. A note to a wife is the property of her husband. But seven years have elapsed since my jurisdiction was barred by the statute. The other point is equally clear. The executor of an executor is doubtless the executor of the first testator, but he must be sued as such, and stated so to be on the face of the warrant. This suit is, therefore, dismissed.
HEYWOOD, D.
QUAYLE for Pltff. ; HOWARD for Deft.
This was a suit brought to recover the amount of interest due on a bond and security originally granted by William Crow, the father of the present deft., who, as his heir, was now in the possession of the estate given in security.
Per Curiam.—The representative of the original grantor must be made a party to the suit. The interest is claimed under the bond, and the heir is no party to it. The executor or administrator may shew that the interest is paid. No doubt the heir takes the land subject to the incumbrance, but the suit being brought for the first interest due after the death of the original grantor, his representative must be before the Court.
QUAYLE then moved for an order of possession.
HOWARD objected to the object of the suit being changed.
Per Curiam.—The object of the suit cannot be changed, but I will allow the Pltff. to take a continuance to make the representative of the grantor of the bond a party to the suit.
HOPE, G.
Objection to the certificate of service, which was as follows
" I do hereby certify, that by virtue of the process granted by the Hon. Charles Hope, Lieut.-Governor and Chancellor of this Isle, upon the cross bill of William Henry Cubbin, John Hogg, and others, filed in the honourable Court of Chancery of this Isle, I have charged Carre Cook Tupper, (and several others mentioned by name) to appear at a Chancery Court to be holden at Castletown, on the 4th day of March next, to answer the suit or bill of the said complnts. Witness my name, this 18th Feb., 1847."
" WILLIAM KNEALE,
Lockman of Onchan."
The deft. objected, that this certificate was insufficient. The bill was filed by the said William Henry Cubbin and about a dozen other individuals mentioned by name, and the certificate of summons stated that the deft. was summoned at the suit of William Henry Cubbin, John Hogg, and others. The certificate should state the whole of the names of the complnts., otherwise if the return of the certificate was of a nature to lead to a contempt, and the subsequent false imprisonment of the deft. , how could he maintain an action for false imprisonment against William Henry Cubbin, John Hogg, and others?
STEPHEN, for complnts.—The certificate is based upon the bill, which was in the Coroner’s hands at the time of the summons being made ; the certificate states that the deft. was summoned under the cross bill of the complnts., and the Court had judicial knowledge that there was but the one cross bill on the file by those parties.
Certificate held insufficient.
HOPE, G
STEPHEN for Pltffs. ; DUMBELL for Deft.
The complnt. moved that the deft. Helen Garrett, be limited to put in her answer.
DUMBELL, for deft., objected, that the order for an answer had been moved for by the complnts. by mistake, as the bill did not in fact pray for the answer of the deft., and, therefore, he moved that the former order of the Court might be expunged.
STEPHEN contended, that he was entitled to a limitation. The order was upon the record, and could not be rescinded but by special motion by petition.
The Court refused to limit the deft., but continued the cause to allow the deft. time to apply specially to rescind the former order.
CORLETT, V. G.
STEPHEN for Pltff. ; DUMBELL for Deft.
Upon this suit being called there was no appearance for the deft., and the Sumner being called stated, that the deft. had left the Island some time previous to the warrant being put into his hands.
STEPHEN, for pltff., moved to have the cause continued. Per Curiam.—There is no suit in court.
STEPHEN.—Due diligence has been used by the pltff., and, as a general principle, it is necessary to preserve the evidence of the commencement of the suit, for it may bar the Statute of Limitations ; and, therefore, it is necessary to enter a continuance.
Per Curiam.—If there is no summons there is no suit in court. At Common Law, if there is no summons the declaration cannot be filed ; and so in the Chancery Court, in matters by petition, if there be no summons the Court will not grant a continuance. The warrant will be the evidence of the commencement of the suit, so far as it goes, supported by the certificate of the Sumner; but I can make no entry whatever, there being neither summons nor appearance in court.
HOPE, G.
STEPHEN for Pltffs. ; BLUETT and DUMBELL for Defts.
The complnts. moved for a rule pro confesso against many of the defts. who were off the Island.
In November and December a first and second attachment had been obtained against the defts. In February and March the cause was simply continued.
BLUETT and DUMBELL.—The complnts. are not entitled to a rule pro confesso against these particular defts., the bill does not pray for any answer from them, although it does from other defts. All that the complnts. are entitled to is a third attachment, and the usual rule entered is, that the cause " proceeds."
STEPHEN.—The motion is in strict accordance with the new rule, and is the only rule that can force an appearance.
BLUETT and DUMBELL.—The new rule applies solely in cases where an answer is required ; but the mode of enforcing an appearance is not altered by the new rule. if service is made upon the substitute, the complnts. are entitled to their four attachments ; the complnts. would then obtain a rule to examine witnesses, and might proceed as to such defts. ex parte.
The Court ruled with the defts.
HEYWOOD, D.
GELLING for Pltff ; JEFFCOTT for Deft.
Suit for £1 10s., amount of rent, with the fees at an arrest, deft. having sold the tenant’s effects under a High Bailiff s execution granted for the rent for which the arrest had been taken out, there being a deficiency (from the Coroner’s neglect) to pay the amount of the execution.
JEFFCOTT objected to the jurisdiction of the Court. The matter should have been followed up in the High Bailiff’s Court, where the execution was granted.
GELLING.—The execution was only the following up of the arrest which issued from the Deemster. The Coroner’s liability arises from the default made by him under the authority of the arrest, he having neglected to secure the effects, when there were plenty on the premises to pay the rent. The default being committed before the execution was granted, the proper jurisdiction is in the Deemster.
Deemster HEYWOOD.—Every Court must carry out and enforce its own judgments. You must go to the High Bailiff.
HEYWOOD, D.
JEFFCOTT for Pltff.; DUMBELL for Deft.
This was a suit brought for the amount of a promissory note, and also the amount of an account furnished. In the account which had been furnished the note did not form an item, nor was it mentioned in it ; but both the note and the account had been separately demanded before suit brought.
DUMBELL, for deft., objected, that no sufficient account was furnished as to the note, and, admitting that no account was necessary If the suit was for the note alone, yet, if as here, joined in one suit in the amount of an account, the amount of the note could only be looked upon as an item in the account, and, therefore, ought to have been mentioned in it. The deft. being furnished with the account only, is taken by surprise, on coming into court, to find an additional cause of action joined with the matter of account, of which he had no notice, save as to a demand which had been made for it.
Deemster HEYWOOD.—The demand is good for the note, and the account being furnished is good for that part of the suit. It would have been improper to have split the matter into two suits, and to have had one for the note and another for the accounts
HEYWOOD, D
STEPHEN for Pltff. ; DUMBELL and BLUETT for Deft.
This was an application, by petition, to obtain the Deemster's order to apprehend and imprison the deft. upon a charge of misdemeanour, in terms of the Statute of 1832, sec. 11, for having libelled the petitioner in a certain public newspaper. The application was supported by the affidavit of the petitioner.
For the deft. witnesses were called to prove the publication of various alleged libels, by the petitioner, against the deft., and to which the publication complained of was but a reply.
STEPHEN objected to the production of any such evidence ; all that the act required was, that the petitioner should shew cause, and for this his own ex parte affidavit was the proper evidence, and it was for the Deemster to determine whether that affidavit was sufficient.
For the deft., it was replied, that the words of the statute were, " that no order should be granted until such private prosecutor shall have shewn cause, on a hearing, in open court." This necessarily implied that both parties were to be heard, and, therefore, that the deft. might rebut the ex parte affidavit of the petitioner by counter evidence, so as to shew that the petitioner ought not to be allowed to prosecute for a criminal offence,~but might proceed to obtain redress by action at law for damages.
The DEEMSTER held with the deft., and, upon hearing the evidence, refused to grant an order for the apprehension of the deft., and left the pltff. to seek redress at law
HOPE, G.
GELL for Pltff. ; DUMBELL for Defts.
The defts. entered an appearance, by their advocate, on the 3rd Dec. last, and were allowed time to plead, answer, or demur. On the 4th Feb. last, they were ordered to answer before the following court, which time, on the 4th March, was extended until the next court, at the defts’. instance. On the 1st April, being the next court-day, the defts. filed a demurrer, and the present was a motion, by petition, to have the demurrer taken off the file for irregularity in filing it.
GELL, for complnt., referred to the general rule of court of the 2nd March, 1 843, which states, that " after an appearance has been entered and a deft. allowed time to plead, answer, or demur, and he has neglected so to do, the deft. shall be ordered to answer, &c.," and contended, that no special plea or demurrer could be filed if a deft. neglected to file it within the time allowed ; it is not a compliance with the order to answer, to file a demurrer. A demurrer is not an answer according to the meaning of the rule : the terms, plea, demurrer, and answer, are the names of distinct forms of pleading, and are recognized as such by the rule.
DUMBELL admitted, that in England no demurrer could be filed after an order to answer, but denied that such is the case here. He cited a variety of cases, within the last twenty years, to shew that it had been the frequent practice of the Court to allow demurrers and pleas to be filed after a rule pro confesso had been obtained. Before the new general rule referred to was made, the practice was to order the deft. to answer within a limited time, or otherwise that the bill should be taken pro confesso.
GELL replied, that whatever had been the practice formerly the new general rule must be considered as regulating the course to be followed for the future ; the demurrer, in this case, was not filed according to the rule, and, therefore, ought to be taken off the file.
The Court ruled with the defts. and dismissed the petition.
HEYWOOD, D.
DUMBELL for Pltff. ; Deft. in Person.
Suit brought to obtain possession of a coach house and stables held by deft.
A witness proved that the rent was payable quarterly.
DUMBELL, for the pltff., contended, that, consequently, the deft. held as a quarterly tenant.
The deft. contended, and it was admitted by the pltff., that he had held the premises, as tenant, for more than a year previous to the 12th May, and that, in such case, the Pltff. was bound to give him three months notice to quit possession previous to 12th May.
The DEEMSTER was of opinion that notice was requisite.
HEYWOOD, D.
DUMBELL for Pltff. ; Deft. in Person.
Suit brought to recover £2 15s. 6d., balance of the price of a cow.
Deft. pleaded a tender of the money previous to the summons for this day, and that he ought not to pay costs.
DUMBELL submitted that the suit had been in court on the 10th May, but the summons was not made in time for that court ; and, it was contended, that an advocate having been employed, and a suit actually commenced, before the tender was made, that tender did not bar the claim for costs.
Execution was granted with costs.
HEYWOOD, D.
STEPHEN for Pltff. ; DUMBELL for Deft.
The suit, in this case, was raised, by petition, to have the deft. ordered to restore and replace in a good and sufficient manner certain railings round a burying place in the parish church of Braddan to the same state and condition they were in before they were removed and destroyed by the deft., as alleged by the petition.
Objection was taken that the cause was one of exclusively Ecclesiastical jurisdiction.
STEPHEN, for Pltff., argued, that the law gave to the heir of the proprietor of a tomb or vault, a right to bring an action of trespass for damage done to it ; and, therefore, as the law gave such a remedy, it could only be upon the assumption that the party was in possession, and, so, this Court had authority to interfere.
DUMBELL, for deft. It is clear this Court has no jurisdiction. The freehold of the churchyard is in the clergyman, and if he chooses to lock the gate of the churchyard he may. The application is not in the nature of a trespass but more analogous to the action of trover, the object of the Pltff. being to have the iron rails restored and brought back.
Per Curium.—Wide as is the jurisdiction of the Deemster's Court, I have no power to order one man to trespass upon the freehold of another. If injury has been done to the freehold of the pltff. he is not without his remedy, for he may bring his action at law for damages.
Dismissed without prejudice. to the Pltff. seeking redress at law if so advised.
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