[from Advocate's Notebook, 1847]

BRIEF NOTES
OF
APPEAL CASES
HEARD AND DETERMINED BEFORE THE
RIGHT HON. THE LORDS OF THE PRIVY COUNCIL,
OR OTHERWISE DISPOSED OF.

THE CASE OF BISHOP WILSON AND MESSRS. WALKER AND CURGHEY, VICARS-GENERAL OF THE ISLE OF MAN,

"At a court held in Kirk Michael, the 27th June, 1721.

" Whereas it appears by the annexed depositions, that Mr. Wm. Bridson, Vicar of Kirk Marown, did affirm he could make the Lord Bishop a liar, only he was ashamed to do it, touching a censure granted by his Lordship and the whole Court against Henry Balfour ; which censure he also called unjust and illegal, and that he would prove it so. And in pursuance of his said false and scandalous aspersion, presumed to administer the holy sacrament to the said Balfour, whilst under the censure aforesaid. And all this under pretence of a verbal order being granted by his Lordship, with the consent of the Court, for the said Balfour’s only asking Mr. Christian’s forgiveness ; the contrary to which has been affirmed and subscribed unto by the whole Court ; and likewise fully appears, as well by the depositions of four persons of undoubted credit who were then present, as by the written order that day granted in the said case.

" For these and other instances of great contempt and insolence towards his Lordship at sundry times, particularly in a full Consistory Court, in the face of the country ; and for his long and malicious persisting therein, contrary to the laws of the Church, and in utter disregard of his ordination vows, &c., he the said Mr. Bridson is hereby suspended ab officio et beneficio, and is so declared to be and continue until sufficient satisfaction shall be made for the great injury done his Lordship, and the offence given to all sober Christians within the Diocese.

" And of this censure publication is to be made in Kirk Marown Church next Lord’s Day ; and notice to be then given who shall be the persons appointed to officiate there during the suspension aforesaid.

" WILLIAM WALKER,

"JOHN CURPHEY."

" At a Convocation of the Clergy held at Kirk Michael, November 29, 1721.

"This day the Rev. Mr. Horrobin, Archdeacon of this Island, being required to give his reasons why he repelled Mrs. Puller from the holy sacrament, gave this for one :—That there had been some undue familiarities betwixt her and a certain gentleman in Castletown, who, he afterwards said, was Sir James Poole. And being desired to tell who was his author, he answered, Madame Horne; who, he said, informed him, that she coming at a certain time to Mrs. Puller’s chamber door (when she lived at Mr. Allen’s), found it shut, at which she knocked several times before it was opened; afterwards, Mrs. Puller came and opened the door, and when Madame Horne came into the chamber, she there found, or saw, Sir James Poole in an indecent posture, and not convenient to be mentioned. And being asked whether Madame Horne gave him this information before he repelled Mrs. Puller, answered, she did."

"At a Court held in Kirk Michael, Dec. 5, 1721.

" Madame Horne has owned, that the substance, as it is here set down, was related by her to the Archdeacon, and declared she had no witnesses to prove it.

"She added, some time afterwards, that Mrs. Puller could not go under any other notion than that of a kept mistress.

" Eodem die et loco. After the oaths of the Rev. Mr. Ross, Academical Professor, and of Elizabeth Coat and Ellen Shimin, ( which two young women had been, one of them laundress, and the other maid servant, to Mrs. Puller, were taken in court, ‘ that they never saw, nor heard, nor even suspected, any immodesty by her,’ then the Court permitted Sir James Poole and Mrs. Rebecca Puller to take their oaths, which they solemnly did on the Holy Evangelists, on their knees, and deposed, they never were guilty of adultery or fornication together, nor of any immodesty whatsoever. After which, Mrs. Alice Stevenson and Mrs. Catherine Halsall, (on Mrs. Puller’s part) and Mr. Thomas Harley and James Gerard, ( who has been a servant to Sir James Poole about four years, on Sir James’s part,) solemnly deposed also, on the Holy Evangelists, that they verily believed the said Sir James Poole and Mrs. Puller to be clear of the sins of adultery, fornication, or unchastity ; and that they also believed the said persons have deposed the very truth in the oath of purgation which they have now taken."

"At Bishop’s Court, December 19, 1721.

" Though the Court has a due regard to persons in Madam Horne’s station, yet the benefit of the law being desired, for the gross slanders and abuses before-mentioned, which must needs have subjected the persons concerned (if guilty) to a severe censure; and on account of which, Madam Horne had been liable to perform public penance, and ask solemn forgiveness ; but, that the persons injured have, at our desire, been prevailed upon to accept of a public acknowledgment, &c. We do, therefore, hereby order, that the said Mrs. Jane Horne acknowledge her offence accordingly, in St. Mary’s Chapel of Castletown ; or (if the parties shall be therewith satisfied) before the Vicar of the parish, asking forgiveness for the great injury done. And this in penalty of confinement in St. German’s prison (by the Sumner, or a soldier from the constable of Castle Rushen) until she give bonds to perform public penance as aforesaid ; and also to ask forgiveness as the laws of the Church direct.

" Publication is likewise to be made, that no person whatsoever presume to revive the said slanders, sub pæna Liii., ad usum Domini, forty days imprisonment, &c.

"THOMAS SODOR and MAN,

WILLIAM WALKER,

JOHN CURGHEY."

On the 17th May, 1722, several charges against Archdeacon Horrobin having been investigated, the Lord Bishop made the following judgment :— " All which, and many more novel assertions, of the said Archdeacon, having, during the course of this controversy, been frequently represented to him as very shocking and offensive to Christian ears, we were in hopes our patience and forbearance hitherto, might have had so good an effect upon him, as to have made him sensible of his errors, and induced him to have given satisfaction to the Church, and thereby prevent a public censure.

" But instead of this, he has not only presumed to repel one of the evidences in this controversy from the holy sacrament, without any previous admonition, and for which he has been already declared irregular ; but also, forgetting his ordination vows, and oath of canonical obedience, has since done his utmost to supersede our judicial acts, and to wrest the episcopal authority out of our hands, by admitting unto the Lord’s Table Mrs. Horne, whom he knew to be under the censures of the Church, deliberately, and this in contempt of the Rubric before communion, the canons, and the laws and statutes of this Church and Nation.

" It being, therefore, high time, of our express duty, to remove the offence given to the flock of Christ, by laying him under ecclesiastical censures, we do accordingly pronounce him, the said Mr. Robert Horrobin, Archdeacon, suspended, ab officio, et beneficio, until he give such satisfaction to the Church, as the nature of his crimes before mentioned requires.

"Dated, May 17, 1722,

"THOMAS SODOR and MAN."

On the 9th February, 1722, Governor Alexander Horne issued an order to the Bishop and Vicars-General to retract and cancel the foregoing proceedings, which, not being complied with, the Governor, on the 22nd June, 1722, issued the following precept :— To the Right Rev. the Bishop and Vicars-General of this Isle.

" Whereas, by an order of the 9th of February last, you were required to retract and cancel your late proceedings against certain persons therein mentioned, exempt by the laws of this Island from the jurisdiction of your court, which proceedings were found to be contrary to the laws and the Lord’s prerogative within this Island. And forasmuch as I do not find that you have yet observed the aforesaid order, These are therefore to require you to give obedience thereunto, according to the tenor and purport thereof, and forthwith make a due return of your performance therein, under the penalties the law prescribes in such cases.

" Given under my hand at Castle Rushen, the 20th day of June, 1722.

" ALEX. HORNE."

The Bishop and Vicars-General having refused compliance with this order, the following proceeding was adopted by Governor borne :— "At a Tynwald Court, holden the 25th June, 1722.

" Forasmuch as the Bishop and Vicars-General of this Island were, by an order of the 9th of February last, required to retract and cancel several late proceedings in their courts, which were contrary to the laws of this Island, and the state and government thereof ; and were again required by precept to observe and perform the same as the law directs in such cases ; and having this day publicly refused to give due obedience to either of them:

" Therefore, for their contempt, the said Bishop is fined in £50, and the Vicars-General in £20 each, which the Coroner is required forthwith to demand.

"ALEX. HORNE.

"To the Coroner of Michael Sheading."

" To the Twenty-four Keys, Representatives of the Commons of this Isle.

" GENTLEMEN,

" Among the many indignities put upon us, the Bishop and Vicars-General, of late years, by the Temporal Court, that of being fined at the last Tynwald is not the least afflicting, in regard that whatsoever is said to be done at that solemn assembly (as is the order for fining us) will, by posterity, be understood to have been done with the knowledge and approbation of the whole Court, which consisting of the Governor, Council, Deemsters, and Twenty-four Keys, we desire to know, whether you the said Keys were made acquainted with, or gave your consent to, the said order, or as to our present imprisonment

" And forasmuch as we were this day openly charged with exercising a spiritual tyranny, you who dwell in several parts of this Isle, may do us the justice of testifying, whether you know, or believe, there be any just cause for so heavy, and (as we persuade ourselves) so groundless an imputation.

"Dated in Castle Rushen, July 10, 1722,

"THOMAS SODOR and MAN, "WILLIAM WALKER, "JOHN CURGHEY."

" MY LORD, AND REVEREND GENTLEMEN,

" We, the Keys of Man, as well to satisfy your Lordship and you the Ecclesiastical Judges, as to justify ourselves to posterity, do hereby certify and declare, that though we were present at the Tynwald, during the whole time of the sitting of the Court, and until the same was dismissed as usual, we neither were made acquainted with, nor gave our consent to, the order you mention; neither was any such order there made or concerted. And, there fore, we could not but be much surprised to hear of your being then fined and afterwards imprisoned.

" And as to the charge of exercising a spiritual tyranny, we do solemnly testify (as we are in duty bound) that there is no cause to us known for so strange an imputation, being verily persuaded, that you have been so far from assuming to yourselves an undue authority, that the Church was never better governed than in your time, nor justice more impartially administered in the Ecclesiastical Courts of this Isle.

"I, Thomas Stevenson, not being present at the Tynwald, agree with my brethren, only in respect of the latter clause,

" THOMAS STEVENSON."

" MEM.—.Five of our members were absent at the signing hereof

"JOHN STEVENSON.

"Castletown, July 11, 1722."

From these proceedings of the Governor, the Bishop and his Vicars-General presented the following petition of appeal :— To the King’s most Excellent Majesty in Council.

" The humble petition of Thomas Bishop of Man, and of William Walker and John Curghey, presbyters, pastors, and Vicars General of the Diocese of Man, now prisoners in Castle Rushen, within the said Island,

" SHEWETH,

" That your petitioners, and the rest of the Clergy of the Diocese, on the 27th of June, 1721, regularly proceeded to suspend, ab officio et beneficio, Mr. William Bridson, Vicar of Marown, for contempt and insolence to the said Bishop in a full Consistory Court, and breach of his ordination vows.

"That on the 19th of December, 1721, they also proceeded to make two other ecclesiastical censures, one against Mr. Archdeacon Horrobin, whereby his repelling Mrs. Puller from the holy sacrament without cause was declared irregular ; and the other against Mrs. Jane Horne, whereby she was ordered to acknowledge an offence committed by her, and to ask forgiveness of the persons offended for the great injury done them, either in St. Mary’s Chapel of Castletown or (if the parties were satisfied therewith) before the Vicar of the parish.

" That all these censures being regularly pronounced, and in cases merely spiritual, no appeal has to this day been offered to your petitioners, by or on behalf of any of the said persons ; but, on the contrary, the said Mr. Bridson has acknowledged his offences for which he was deprived, submitted to the censure, and interceded with your petitioners to have his suspension taken off.

" That had the said censures been irregularly pronounced, any appeal could only have lain before the most Rev. Father in God his Grace the Archbishop of York, as Metropolitan ; the Bishoprick and Diocese of Man being, by Act of Parliament of the thirty-third year of the reign of King Henry the Eighth, annexed to the province of York.

"Notwithstanding which, upon the 24th May last, your petitioners were served with an order or writing, made by the pretended authority of Captain Alexander Horne, Governor of the said Island,

Mr. John Rowe, Comptroller, Mr. William Sedden, then Water Bailiff, and Mr. Daniel Mylrea and Mr. Charles Moore, Deemsters in the said Island ; which writing bore date the 9th of February last, wherein the aforesaid proceedings were arraigned, and your petitioners injuriously charged to have acted therein contrary to law, to the diminution of the Lord’s prerogative, and to the subversion of the Government, and by which your petitioners were in a menacing manner required, under penalties to be inflicted, to retract and cancel their proceedings in the aforesaid cases.

"And on the 21st of June last, your Petitioners were served with another order in writing, made and signed by the said Alex. borne, Governor, and dated the day before, taking notice of the order of the 9th of February, and that the proceedings thereby ordered to be retracted and cancelled, had been against persons who by the laws of the Island were exempt from the jurisdiction of your petitioners court, (although, in fact, the law expressly provides that no person whatsoever shall be privileged from Church censures; and besides, two of the said persons censured were Clergymen within the said Island,) and requiring again under penalty, that your petitioners should not only obey the order of the 9th of February, but also make a due return of their performance.

" That what makes these orders more irregular and surprising than they seem to be, is, that they do not appear to have been issued or granted at the request of the several parties censured by your petitioners as aforesaid, but rather to proceed from the mere motion of the said Governor, and other officers aforesaid.

" That on the 25th of June last, (being four days after your petitioner’s were served with the said second order of the 20th of June) at a Court of Tynwald held in the said Island, at which the said Governor and officers assisted, your petitioners presented a protest (signed by them, and directed to the said Governor) in behalf of themselves, and of his Grace the Archbishop of York the Metropolitan, against the said officers’ proceedings in the cases before-mentioned, as no way belonging to their cognizance ; your petitioners at the same time declaring by the said protest, that they purposed to use all just and legal ways of obtaining redress.

" That this last order, though said to be made at a Tynwald Court, was not made till after that Court was dissolved, and the majority of the members necessary to hold such court were neither present at making that order, or acquainted therewith ; nor would that order or sentence have been at all legal or regular, if all the members of such court had been present at the making thereof.

" That about two days after making the last order, the Coroner demanded the said fines of your petitioners, but your petitioners could by no means submit to pay the same ; whereupon, on the 29th of June last, being St. Peter’s Day, your petitioners were by three soldiers taken and carried to prison, in Castle Rushen aforesaid, and are there still detained by means of the aforesaid orders, without any hopes of relief, save from your Majesty’s goodness and justice.

" Your petitioners, therefore, most humbly pray your Majesty, that they may have your Majesty’s immediate order for their release, they being ready to give security for the said fines, if the same shall be legal ; and that the said Alexander Horne, John Rowe, William Sedden, Daniel Mylrea, and Charles Moore may be directed to return their answer in writing forthwith to this your petitioners’ complaint, and that your petitioners may be allowed free recourse to any records in the Island, and to have authentic and attested copies of such as they shall want, paying the accustomed fees ; and that a day may be appointed for hearing this your petitioners’ complaint, and the answer of the said officers, when the same shall arrive ; and that your petitioners and their witnesses may come over to attend such hearing, without performing quarantine, (which the age and infirmity of some of them will not allow them to undergo, without hazard of their lives) the commissioners of your Majesty’s customs having, as your petitioners are informed, no objection to the taking off the quarantine from the Isle of Man.

"And that upon such hearing, your petitioners may have such relief against the said orders of the 9th of February, 1721 , and the 20th and 25th of June, 1722, either by reversing the same, or by allowing your petitioners to appeal therefrom, as against the said Governor and officers before-named, and may have such reparation and satisfaction for the great injuries done to them, and such costs, charges, and other relief, as to your Majesty, in your great wisdom and goodness, shall seem meet.

" And your petitioners, as in duty bound, shall ever pray, &c.

"A true copy, JAMES VERNON."

This petition was referred to his Majesty’s Attorney and Solicitor-General, with instructions to communicate with the Earl of Derby, the proprietor of the Isle of Man, to know if he had any objection to the prisoners being released on giving security to answer the fines, if found legal, and to report what in their opinion was the method to be taken for the release of the petitioners.

On the 2nd of August, 1722, the Attorney and Solicitor-General reported that they had applied to the Earl of Derby, and that he had stated, in reply, his entire ignorance of the whole transaction, and that it would be necessary for him to know what the Governor, Council, &c., of the Isle of Man had to say before he could give any answer ; and the report then proceeds— " And we beg leave further humbly to certify your Majesty, that upon consideration of the allegations of the said petition, we apprehend, that the imprisonment of the petitioners, hereby complained of, is in the nature of a commitment in execution, for fines imposed by judgment of a Court claiming to act by a legal authority, for which the petitioners have appealed to your Majesty ; and, therefore, we are of opinion, that pending the appeal, and before any determination made thereupon, no order can by law be made for the discharge of the petitioners out of custody upon giving Security for the fines, without the consent of the person interested therein ; but the commitment being only for non-payment of the said fines, we apprehend, that in case the petitioners pay down the same, they ought to be forthwith set at liberty, and such payment being compulsory, will be no prejudice to the appeal, or any other remedy they may think fit to take by due course of law. All which is most humbly submitted to your Majesty’s royal wisdom.

" ROBERT RAYMOND,

"P. YORKE."

August 2, 1722.

"A true copy, TEMPLE STANYAN."

On the 4th July, 1724, the said appeal was heard before the Privy Council, and upon their report the following judgment was made :— " His Majesty, in council, taking the said report into consideration, was pleased to approve thereof, and pursuant thereto, to refer that part of the said petition of the said Bishop and Vicars General, relating to charges and expenses, to Mr. Attorney and Mr. Solicitor-General, to consider the same, and report to his Majesty at this board, what method may be most proper to make satisfaction to the petitioners therein.

" And his Majesty is hereby pleased to order that the aforesaid judgments or sentences given by the Governor, Council, and Deemsters, of the Isle of Man, on the 9th and 10th days of February, 1721 , be reversed and set aside, in regard they had no jurisdiction.

" And for that the order signed by the Governor, as made at a Court of Tynwald the 25th day of June, 1722, was not an order of that Court ; that, therefore, the fines imposed by the said order upon the said Bishop and Vicars-General be restored to them.

"And the Right hon. the Earl of Derby, proprietor of the Isle of Man, the Governor or Commander-in-Chief for the time being of the said Isle, and all others whom it may concern, are to take notice of his Majesty’s pleasure hereby signified, and cause this order to be registered in the records of the said Isle, and duly complied with.

"TEMPLE STANYAN."

 [see Land of Home Rule by Spenser Walpole, chap 11, for a discussion on this case]

LIB. SCAC., 1784.

THOMAS TAYLOR, On behalf of Himself and Partners, v. Sir W. BUSK, Attorney-General, RICHARD BENTHAM and SENHOUSE WILSON.

The sloop Jane put into Douglas Harbour on the night of the 6th of February, 1784, from stress of weather as was alleged, she being bound to another port. Custom-house officers were sent on board of her in the usual manner ; but suspicions finally attaching to her from the varying statements made by her captain as to her destination and cargo, she was finally seized, as a smuggler, by Richard Bentham, Esq., the Collector of the Customs, and Senhouse Wilson, Esq., Deputy Receiver-General. Information was then exhibited in the Court of Exchequer, on the 4th May, 1784, stating the contents of her cargo, which consisted of brandy, geneva, foreign wines, cordials, silks, lace, gloves, India goods, &c., of great value, and setting forth the grounds of her seizure.

The applnt. Taylor, as owner, and John Shannon, as master, put in their claim to parts of the cargo on the 18th of June, and on the 2nd of September, 1784, the case was heard in the Court of Exchequer.

During the trial, a part of the defence was based upon an allegation that something had gone wrong with the rudder, by which the vessel was distressed and compelled to seek shelter in the Isle of Man.

Wilson (then a most active officer) communicating his intention to the counsel conducting the cause, and leaving it to him to delay closing the evidence, mounted his horse, rode to Douglas, unshipped the rudder, and returned with it to Castletown in time to exhibit it in evidence and disprove that part of the case.

The Court of Exchequer made the following judgment

It is, therefore, hereby adjudged, that the said sloop Jane, with her guns, furniture, ammunition, and apparel, and all and singular the said goods and merchandize in the said information mentioned, and in and by the said indenture appraised to the said sum of £1909 9s., be forfeited, and the same is and are hereby declared and adjudged to be and remain forfeited accordingly. And it is hereby ordered, that the said sloop Jane, with her said guns, furniture, ammunition, and apparel, and also the said several goods and merchandize hereinbefore specified, be sold and disposed of according to the directions of the several Acts of Parliament in that behalf made and provided."

From that judgment an appeal was entered to his Majesty in Council, and the applnt. prayed to have the judgment reversed, upon the alleged reason, " that the said vessel had committed no act of forfeiture, nor had been guilty of any breach of the law under colour of which the seizure of her and her cargo was made."

" EDWARD BEARCROFT,

"A. PIGGOT.

On the other hand the respndts. affirmed that the judgment ought to be affirmed with costs, for the following reasons

1st.—" Because that the said vessel so laden with contraband commodities had, for two days, hovered within three leagues of the shore of the said Island, without having been in unavoidable necessity or distress of weather ; and because no notice was given, or proof made of any such necessity or distress, to the chief officer of the Customs resident at the nearest port to the place or places in which she so hovered.

2nd.—" Because the foreign spirit which composed part of the said cargo were not shipped in Great Britain, and because the said vessel was under the tonnage prescribed by the Act of the 5th George III., for vessels allowed to import wine into the said Island.

"JOHN LEE,

"T. ERSKINE."

At the Court at St. James’, the 19th August, 1785.

His Majesty taking the said report into consideration, was pleased, with the advice of his Privy Council, to approve thereof, and to order that the said order of the Lieutenant-Governor of the Isle of Man of the 2nd September last be, and the same is hereby affirmed ; and that the said petition and appeal therefrom be dismissed this board with costs to be taxed by the proper officer of the court below. Whereof, &c.

LIB. CAN., 1804.

JOHN MOORE and WIFE, and CATARINA MOORE, Widow, v. RHODA MOORE, Executrix of P. T. Moore and Margaret Harper [sic Harpur].

Philip Moore, the elder, of the Hills-house, near Douglas, in the Isle of Man, being indebted to many persons, and amongst others to Thomas Moore, of the Abbey, who had married the daughter of the said Philip Moore, and is father of both the respndts., by deed of 5th April, 1784, in due form, by and with the consent of Eunice Moore, his wife, settled and estated on his son, Philip Moore, the younger, the Hills Estate, and other lands, to hold to him and his heirs after the death of the survivor of the grantor and his wife.

Philip Moore, the younger, by deed of equal date with the said settlement, covenanted to pay all the debts of Philip Moore, the elder.

On 23rd September, 1788, Philip Moore the younger came to a settlement of accounts between the said Philip Moore, the elder, and Thomas Moore, on which there appeared to be due to the said Thomas Moore, the sum of £984, and, thereupon, the said Philip Moore, the younger, executed a bond in the penal sum of £1988, to the said Thomas Moore, in order to secure the payment of the said principal sum and interest.

On the 24th of August, 1794, Thomas Moore departed this life without having received the said principal sum and interest, or any part thereof, having, by his last will, appointed James Christian Moore sole executor.

James Christian Moore assigned to his mother Margaret all his interest in the said bond, being one-half or moiety ; the said Margaret Moore being entitled, as widow of Thomas Moore, to the other half.

By deed of the 22nd January, 1799, the said Margaret Moore assigned the said bond to the respndts.

Philip Moore, the younger, departed this life, leaving the applnt. Eunice Catarina Teresa Moore, his eldest daughter and heiress-at-law, then under age, without having discharged the said bond.

On the 18th December, 1801, on application made to the Ecclesiastical Court in the said Island, John Christian, Sumner-General, (an officer of that court) was appointed administrator in trust of the personal estate of Philip Moore, the younger.

On the 6th August, 1802, the respndts. commenced a suit in the Ecclesiastical Court against John Christian, as such administrator, and obtained a judgment for the principal and interest due On the said bond ; but as it appeared that there were no personal effects of the said Philip Moore, the younger, subject to the control of the Ecclesiastical Court, the judgment remained unsatisfied.

By the laws of this Island, in case of a deficiency of personal assets, the purchased land, and lands of the description of cottages and intacks, of which the deceased dies possessed, become chargeable with all his debts.

On the 24th of November, 1804, the said Philip Moore, the younger, died possessed of lands of the above description, and the respndts. accordingly filed their original bill in the Court of Chancery in the said Island, against the applnt. Eunice Catarina Teresa Moore, by George Quayle and James Oates, Esqs., her then guardians, and the applnts. Catarina Moore, John Quane, and Thomas Harrison, stating the matters aforesaid, and stating " that the said John Quane and Thomas Harrison claimed as incumbrancers on the said lands, (which incumbrances have been since paid off and discharged,) and praying that the principal and interest due under the said bond might be paid to the respndts. out of the lands settled as aforesaid, in preference to, or on a par with the other incumbrances, and for further relief.

Before any proceedings were had under the said bill, George Quayle, one of the guardians of the applnt. Eunice Catarina Teresa Moore, and party to the original bill, having declined to act, the respndts. were advised to apply to the Court of Chancery to have a new guardian appointed, but as no Chancellor was then resident in the Island, before any further proceedings were had under the said bill, the applnt. Eunice Catarina Teresa Moore intermarried with James Oates, Esq., whereby the suit became abated.

On the 22nd July, 1805, the respndts, filed their amended bill of revivor in the Court of Chancery, stating the former bill, and that one of the mortgages on the said lands was near becoming elapsed, and praying to be let into the equity of redemption.

Before any proceedings were had under the said amended bill of revivor, James Oates departed this life, whereby the suit became abated, and the applnt., Eunice Catarina Teresa Oates, otherwise Moore, being then a minor, Thos. Gawne and Joseph Clarke, Esqs., were duly appointed her Guardians.

On the 3rd August, 1 807, the respndts. filed their bill of revivor against the applnts., and Thomas Gawne and Joseph Clarke, praying to have the suit revived against them. Divers proceedings were had in the suit under the last mentioned bill of revivor, but before the same came on to be heard, the applnt., Eunice Catarina Teresa Oates, otherwise Moore, attained her full age, and a bill of revivor was accordingly filed against her ; but, before any further proceedings were had under the last mentioned bill of revivor, the applnt. Eunice Catarina Teresa, intermarried with the applnt. John Moore, whereby the suit and proceedings became abated,

On the 3rd of October, 1808, the respndts. accordingly filed their bill of revivor against the present applnts., and Thomas Harrison and John Quane, stating the several matters aforesaid, and praying " that the said suit might stand revived, and that they might have such relief as prayed for under the original bill."

On the 1st December, 1808, the suit was revived accordingly. The defts. to the bill alleged that the deed of 23rd September, 1788, was a mere colourable transaction for family purposes ; that no consideration was given for the same, and that it was, in fact, only a contrivance to defeat another claim supposed to be fraudulent

The cause was finally heard on the merits, and the following decree made :— 2nd May, 1810.

It was ordered by the said Court of Chancery, "that the bill, as to Quane and Harrison, should stand dismissed." And the said Court was of opinion, " that the applnts. should pay to the respndts. the principal sum of £984 mentioned in the said bond, together with interest at five per cent. by the year, from the 1st of January, 1789, till paid ; otherwise that the same should be levied out of the houses, lands, and premises comprised in the settlement of the 5th of April, 1784, which were of the description of cottages and intacks, and all other property of the said Philip Moore, the younger, in the said Island, which was in ordinary course liable for the payment of his debts." And it was, thereupon, ordered and decreed, " that in case the respndts. did not, within forty days after the service of that decree, pay to the applnts. £984 with interest as aforesaid, that in that case the Coroner or Coroners whom it might concern, should, with all convenient speed after the expiration of forty days, and after public notice given, sell by public auction, all and singular the houses, lands, and premises of the description of cottage and intacks as aforesaid, and all other the property of Philip Moore, the younger, within the said Island, which was in ordinary course liable to payment of his debts, or a sufficient part of the same, to pay and satisfy the sum of £984, with interest, costs, and charges attending such sale.

From this judgment the said defts. appealed, and prayed to have the judgment reversed.

1st.—" Because no sufficient evidence has been adduced of the execution of the bond by Philip Moore, the younger, the obligee thereof."

2nd.—" Because, in a case so pregnant with suspicion as to the consideration of the bond, it ought to have been submitted to a jury in the shape of an issue, whether any consideration existed for the bond ; or whether the same was not made for the sole purpose of protecting the obligor from the fraudulent mortgage above referred to.

3rd.—" Because the sum decreed by the Court of Chancery to the respndts., for principal and interest on the bond in question, exceeds the amount of the penalty of the bond.

"W. G. ADAM."

The respndts. hoped to have the judgment affirmed for the following reasons :— " Because the respndts. having, by all legal means in their power, endeavoured to obtain payment of the principal and interest under the bond, and obtained a judgment of the Ecclesiastical Court for payment of it long before such principal and interest amounted to the penalty of the bond, and the delay of such payment not having been occasioned by any laches or default of the respndts., the loss of such interest ought not, in justice, to be sustained by them, and they were, by the law of the Island, justly entitled to recover it.

"On the 24th of July, 1812, the respndt. Philip Thos. Moore died, having first made his will, and appointed Rhoda Moore, his wife, sole executrix.

"On the 7th of August, 1812, at the proper Ecclesiastical Court in the Island, Rhoda Moore being duly sworn executrix, is thereby become the legal personal representative of the said Philip Thomas Moore.

"SAMUEL ROMILLY,

"W. H. QUAYLE."

18th April, 1815.

The Appellate Court affirmed the judgment of the court below.

LIB. PLI., 1808.

WM. QUALTROUGH v. THOS MYLCHREEST and ANN, his Wife.

This was a case of very grossly slanderous words spoken of a married woman by the applnt.

By Act of Tynwald, 1738, it is enacted, " that in all complaints of slanderous words, the party defamed, or any informer of a slander, shall be obliged to make a declaration of the slanderous words before a proper judge or magistrate within fifteen days after the speaking or uttering the same, in order to a prosecution ; otherwise such complaints of slander not to proceed at any time afterwards."— Mills Statutes, 253.

On the 12th of April, 1807, the respndts. laid their claim before the Deemster, in terms of the statute, and were referred to law.

The respndts. afterwards filed their declaration at law, laying the damages at one thousand (the word pounds being omitted). The cause came on to be heard before a jury on the 13th October, 1 807, and the following verdict was given

" The jurors upon their oaths say that the pltffs. recover nothing, in regard that the pltff. Ann had given the first offence, and that each party bear their own costs."

From this verdict the respndt., in the usual form, appealed to the House of Keys.

On the 25th of January, 1808, the appeal came on to be heard, and an exception having been taken to the omission of the word " pounds" in the declaration, and that, therefore, the House could not proceed on the merits ; the House ordered and adjudged, " that the said cause ought, on that ground, to be dismissed, and the parties allowed to proceed de novo."

From this judgment no appeal was brought, but the respndts. filed a new declaration against the applnt., stating the defamation published on the 10th of April, 1807, which was the subject of the former suit ; and also stating further defamation, to the same effect, uttered by the applnt. in the house of Patrick Creer, on Tuesday, the 5th of January, 1808, and also on the 9th of January, 1808, in the house of Thomas Crellin, and laying the damages at £5000 British.

To this declaration a special plea was filed by the applnt., pleading the former verdict of the 13th of October, 1807, in bar to the action.

By statute passed in the said Island, in the year 1777, it is enacted, " that each deft. do enter his appearance, and proceed to Isis defence, so that the same may be tried by a jury the second term, provided that in case the deft. file a special plea or demurrer within twenty-one days after the first court, the same shall be argued at such short time afterwards as the Court shall, upon application, direct. And in case the same shall be overruled, the deft. shall pay costs at the discretion of the Court ; and if within the Island, be also obliged to join issue, so that the cause may come on to be tried at the second court."

On the 10th May, 1808, the applnt. moved to have the said plea heard, but no legal notice having been given, the plea was held to have been abandoned, (see page 362,) and the cause was ordered to be heard upon the merits.

The applnt. and his advocates then withdrew from the court, and the cause was heard upon the merits as in the nature of an undefended action, and the pltffs.’ witnesses having been examined, the jury gave £150 damages with costs.

From this verdict both parties appealed to the House of Keys. On the 7th Dec., 1808, the appeals were heard, and the Keys increased the damages to £500.

From these proceedings the deft. in the court below appealed to his Majesty in Council, and prayed to have the judgments reversed for the following reasons :—

1st.—" Because the granting of a new process by the House of Keys, after a jury had given a verdict for the deft. in the first action, on account of an error in the pltffs.’ proceeding, and not of any irregularity committed by the deft., the now applnt., was illegal and contrary to justice.

2nd.—" Because, if the House of Keys had power to order such proceeding de novo, it was not competent to the pltffs., the now respndts., to extend and vary the grounds of their action, so as to lay the words originally alleged differently, and to add other and new offences arising subsequently to the decision of the House of Keys.

3rd.—"Because the applnts.’ plea, in bar to the second action, was overruled in a manner contrary to law, reason, and justice.

4th.—"Because the immediate proceeding to the trial of the cause, in which issue had not been joined when the respndt. was prepared and present, while from the course of his proceeding the applnt. could not be prepared and was absent, was most unjust, arbitrary, and oppressive.

5th.—"Because the damages of £150, found by the jury under such circumstances, were excessive, and the verdict altogether unfounded, none of the words laid in the declaration having been proved.

6th.—" Because the increase of the damages directed by the House of Keys, is most exorbitant and oppressive.

"But should these reasons, and such others as may be adduced, be insufficient to procure the proceedings to be utterly annulled, it is submitted, that on the very face of them there is matter sufficient to cause them to be sent back for a new trial, at which the applnt. may be fairly heard in his own defence, and have the constitutional privilege of cross-examining the witnesses adduced against him, and producing evidence of his own to repel their testimony.

"JOHN ADOLPHUS,

"THOMAS PLUMMER.

"Temple, March 24, 1812."

The respndt. submitted that the judgment of the Keys ought to be supported for the following reasons :—

1 st.—" Because, by the uniform practice of the courts of the said Island, three days previous notice is required to be given by the deft. to the pltff. of the day appointed for the hearing of a special plea : that in this case no such notice was given, and the plea was considered as abandoned, and properly overruled.

2nd..—" Because, in case the said special plea had been improperly overruled, the applnt., by appealing from the verdict given by the jury on the merits instead of appealing from the judgment overruling the plea, thereby joined issue on the merits, and waived his said plea, supposing the same to have been good, and not before overruled.

3rd.—"Because, from the applnt’s. wantonly persisting in his gross calumnies against the respndt. Ann, and not attempting to adduce the slightest evidence even of levity in her conduct, his malice against her is clearly evinced.

4th.—" Because, the House of Keys, consisting of the principal gentry of the Island, to whom the character and circumstances of the parties are known, are the most competent judges of the damages which they in their discretion awarded.

"SAMUEL ROMILLY,

"W. H. QUAYLE."

No further proceedings on record.

LIB. PLI., 1814.

PATRICK KARRAN v. J. WALKER, H. WALKER, J. COWIN, and J. COWIN.

This was a suit brought by the respndts., then pltffs., at Common Law, seeking to recover the full amount of a sum of money which had been paid by Government to the deft., now the applnt., for certain joiners’ work performed by them at the Barracks at Peel, whereas the deft. pretended that he had contracted for the work, and that the pltffs. were only workmen employed by him.

The suit was instituted originally in the Deemster’s Court, and was there referred to law.

Upon a hearing, the jury gave a verdict for the pltffs. for £300, subject to certain deductions in the verdict mentioned. The deft. appealed to the Keys, and, on a hearing, on the 16th

August, 1816,

The House of Keys affirmed the verdict of the jury, with £20 British costs.

From these two judgments the deft. appealed to the King in Council, and on the 19th June, 1819, the suit, not having been prosecuted by the applnt., was, upon petition of the respndts., " Dismissed for want of prosecution, with £20 costs of the appeal."