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© F.Coakley ,
2000
[from Advocate's Notebook, 1847]
LIB. CAN, 1816.
In the month of June, 1816, the present applnts. filed their bill in Chancery against the respndts., setting forth the deeds referred to in the case of Moore and Wife v. Moore and Harpur, page 477, the proceedings and decrees in that cause, the complnts own claims as mortgagees on the same properties, and praying (amongst other things) that the said bond, dated the 23rd of September, 1788, executed, or pretended to have been executed, by the said Philip Moore, the younger, to and in favour of the said Thomas Moore, should be vacated, annulled, and set aside, and that a perpetual injunction should be granted against his Honour’s decree, made at the suit of the said Philip Thomas Moore and Margaret Harpur, dated the said 2nd of May, 1810, so far as the same went to deprive the complnts. of any part of the property granted in settlement to Philip Moore, the younger, by Philip Moore, the elder, and Eunice his wife, or affected the complnts.’ securities and mortgages on the same. And that the complnts. might be ordered to be put into the possession of the said lands and premises the interest being unpaid. And that the same might be sold to discharge the said mortgages, and such other incumbrances as were of a preferable nature to the said mortgages, if any on the hearing should appear to affect the said estate and premises. And that in the mean time his Honour’s said decree, dated the 2nd of May, 1810, and all subsequent proceedings and orders to carry the same into effect, might be stayed and suspended."
That shortly after the filing of the said bill, the said complnts. obtained the injunction prayed for by the said bill. on the 3rd of October, 1816, Margaret Harpur answered the said bill, and moved, by petition, to have the injunction dissolved; but, upon a hearing, the Court decreed, " That the injunction ought to be sustained until the hearing of the cause upon the merits, or until the same be otherwise disposed of."
Afterwards, on the 26th day of November, 1816, Rhoda Moore, another of the respndts., filed a plea in bar of the said bill of complaint of the applnts., setting forth their proceedings, and alleging that judgment had been obtained in the said suit, wherein the said Philip Thomas Moore, the deceased husband of the said Rhoda Moore, and the said Margaret Harpur, were complnts., and the other respndts., John Moore, Eunice Catarina Teresa Moore, his wife, John Quane, Thomas Harrison, and others, were defts. ; but in which suit the applnts., nor either of them, were parties. And having obtained an order for the bringing on the matter of the said plea to be heard at a Special Chancery Court, holden at Castle Rushen on the 16th day of January, 1817, the following order, dissolving the injunction, was pronounced :— " The plea filed by the deft. Rhoda Moore, in this cause, coming on to be heard in pursuance of an order granted on the petition of the defts. Rhoda Moore and Margaret Harpur, and upon consideration had thereof, and of what was otherwise pleaded, offered, argued, and alleged on behalf of the parties respectively, it is ordered, that the injunction obtained on this bill be dissolved and taken off ; and the same is hereby dissolved and taken off accordingly."
From this decision the present appeal was brought for the following reasons :—
lst.—"Because the sum of £7000 having been advanced by John Joseph Bacon for the purpose of paying the original mortgages held by Harrison and Quane, and these mortgages having actually been paid off with that money, the applnt. Robert Murray, as the assignee of the mortgages to John Joseph Bacon and Anne Bacon, under the trusts of his the said John Joseph Bacon’s will, is entitled to be considered in equity as standing in the place of the original mortgagees, and to have a decree to that effect.
2nd..—" Because the plea of the respndt. Rhoda Moore ought to have been overruled. But if not, still no judgment having been pronounced on the validity of the plea, the order for dissolving the injunction was irregular and improper. The effect of that order is to give priority to the bond debt over the mortgage debts, although the bond is posterior to the original mortgages in point of time, and the merits of the question between the parties has never been discussed.
3rd.—" Because, if the plea had been overruled, and the respndt. Rhoda Moore had put in her answer to the bill, the injunction would have been continued on the merits, as the applnts. would have shewn, if the cause had come to a hearing, that the bond was granted without any consideration, and was framed for the purpose of defrauding the mortgagees and the other creditors of Philip Moore, the younger ; and that the suit on the said bond, in which the decree sought to be enforced by the respndts. Rhoda Moore and Margaret Harpur, had been pronounced, and was proceeded in without answer, examination of witnesses, or any defence whatever, and the decree obtained by fraud and collusion between the parties.
"W. G. ADAM."
The respndts. claimed to have the judgment appealed from affirmed, for the following reasons :—
1st.—" Because although the claim of the respndts. Rhoda Moore and Margaret Harpur against John Moore, Eunice Caterina Moore his wife, and Catarina Moore, has been established by the said decree of the 2nd of May, 1810, and such decree has, upon appeal to his Majesty in Council, been affirmed ; yet the present applnts., by their aforesaid bill, having prayed that the said bond may be annulled, and that a perpetual injunction may be granted against the execution of the decree, do thereby in effect improperly seek to reverse the said decree, so affirmed on appeal to his Majesty in Council.
2nd.—" Because the money sought to be recovered by the said applnts. appears to have been advanced to the respndts., the owners of the equity of redemption of the premises in question, after the said Philip Thomas Moore and Margaret Harpur’s suit was instituted, and while it was pending, nevertheless the said applnts. took no steps for the recovery thereof until after the decree had been affirmed on appeal as aforesaid, and process had been issued for carrying the said decree into execution, wherefore the said respndts. Rhoda Moore and Margaret Harpur insist that it is evident that the object of the present applnts. is to assist the other respndts. John Moore, Eunice Caterina Teresa Moore his wife, and Caterina Moore, the applnts. in the former suit, in defeating or delaying the execution of the said decree against them, affirmed on appeal as aforesaid to his Majesty in Council.
3rd.—" Because it is contrary to the practice of the said court to restrain or to delay the execution of its decrees at the instance of persons not parties to the suit in which the decrees are made, nor the representatives of the parties bound thereby, except upon the ground of such decrees being obtained by fraud and collusion of the parties, which is not pretended to have been the case in the cause in which the said decree was pronounced and affirmed on appeal as aforesaid.
4th.—"Because the present appeal is filed for the sole purpose of vexation and delay, the rights of the parties claiming under the mortgages to Kewley and Preston having been fully considered before the decree of the 2nd of May, 1810, was pronounced.
"JAMES CLARKE."
NOTE—It does not appear upon record whether this appeal was ever brought to a hearing.
On the 31st May, 1817, the respndt. filed his bill in the Court of Exchequer against the applnts. and Robert Farrant, since deceased, claiming the tithe of potatoes out of the estates of Ballamore and the Nappin, and praying a discovery and account of such tithe, and payment of the amount.
The complnts. obtained the following decree in their favour :— 4th May, 1819.
" That the deponent Robert Farrant’s lands and premises, called Ballamore, in the pleadings mentioned, were, and are subject and liable to the payment of tithe of potatoes," and the same was so ordered and decreed accordingly. And it was further ordered, " that Robert Farrant should render an account, upon oath, to the complnt., of the crop of potatoes which grew in and upon the said lands and premises in his occupation in the year 1816, and should pay to the complnt. the value of the tithe of such crop." And as to so much of the bill as sought recovers of the tithe of potatoes from and out of the lands called the Nappin, in the pleadings mentioned, for the year 1816, the Court was of opinion " that the bill, so far as aforesaid, ought to be dismissed for want of proper parties, the occupier of the lands not being made a party to the bill." And it was further ordered, " that each party should bear his, her, and their own costs in the cause."
From this judgment the defts. appealed, for the following reasons
lst.—"Because the modus covering the lands out of which small tithes are now claimed, has been established by uncontradicted, consistent, and decisive evidence ; but, if even such tithes were due, they are of right payable to the Vicar of the parish of Jurby.
2nd.—" Because, prima facie, the Incumbent of the living with cure of souls being entitled to these tithes, if it were admitted that they were, in general, due and of right payable to the respndt., still, as there are numerous exceptions within the parish proved, and as the modus due from this farm always was accepted and received, as far as memory can trace, by the Vicar, it was incumbent on the respndt. to prove, which he has not and cannot do, that his predecessors, or one of them, ever received tithe therefrom.
3rd.—" Because it appears by the evidence of John Nelson, the respndt’s. own witness, that, as Vicar, he had, during his whole incumbency, and till 1816, received this very modus ; and although it is pretended that some transfer of the right to small tithes arising from these premises was made by him to the respndt., of this transfer no notice or intimation whatsoever appears by the evidence, or is pretended to have been given to the deft. Robert Farrant ; nor has any instrument or agreement between the respndt. and the Incumbent been produced or referred to, by which the right to these tithes, or to this modus, of which the witness John Nelson, was so in possession, was transferred or ceded to the respndt.
4th.—" Because the defts. in the original suit having required an issue at law to establish the validity of their modus, evident wrong was done them by its refusal ; and, still more evidently, by absolutely refusing their appeal to his Majesty in Council against the interlocutory order depriving them of such right.
5th.—" Because the right to tithe in the Isle of Man stands on a different footing from that founded on the law of England, and appears to rest on some ancient agreement, which, although the applnts. cannot distinctly produce or prove the same, yet must have been consequent on some compact, by which,—on the one part,— the laity submitted to the burden of tithes, including certain objects not generally included by English law ; on the other hand, certain objects titheable in England, appear to be excluded. Among these were all roots ; and in conformity to such custom, not potatoes merely, but all roots whatsoever, have in practice been always exempt from rendering tithe. And such has been the undisturbed Insular law until the respndt’s appointment to the Bishoprick.
"ANTHONY HART,
"W. H. QUAYLE."
The respndt. alleged that the decree ought to be affirmed, for the following reasons :—
" Because the alleged modus is neither so laid nor established as to constitute a good and valid modus.
"The modus is alleged to consist in rendering yearly a spade’s cutting of turf, to be cut on one day of the year, without alleging on what day, or even at what period of the year the turf is to be cut, and is, therefore, not sufficiently fixed or certain as to the time of payment.
" The alleged modus, or customary payment, is of modern date, and appears to have its origin in the habit of the Vicar of Jurby, who is entitled to the small tithe of a choice house, making choice of Ballamoore, which is the best estate in the parish, and the alleged modus could not have been beneficial to the Bishop, who has a turbary on his own demesne, not one-third of the distance of the estate of Ballamoore, which is between six and seven miles distant from Bishop’s Court, the residence of the Bishop.
"There is no such ancient custom, as is alleged by the applnts., exempting potatoes from the payment of tithes, because it is proved, that the introduction of potatoes into the Isle of Man is of recent date, and their first cultivation to any extent, is within the memory of persons now living.
"The order, dated the 28th day of April, 1819, directing that this cause should be decided by the Court, and not by a jury, ought to be affirmed, because such mode of trial is alone conformable to the established Jaw and practice of the court. Previous to the year 1777, all questions relating to tithes were exclusively decided by the Ecclesiastical Court, and were invariably decided by the Judge without the intervention of a jury. In the year 1777, the jurisdiction in matters of tithes was, by an Act of Tynwald, transferred from the Ecclesiastical Court to the Court of Exchequer ; but it ; was a mere transfer of jurisdiction, the law and the mode of trial remaining unchanged. The Governor of the Island, assisted by the Deemsters or Judges, the Clerk of the Rolls, and the Water Bailiff, (or Judge of the Insular Court of Admiralty), the chief law officers, preside in the Court of Exchequer.
" The case of Christian v. Radcliff is the only instance in which trial by jury was ever substituted for the ancient and established mode of trial in the Court of Exchequer ; and this point was soon afterwards brought before your Lordships in Council, in the case of the Duke of Atholl v. Bridson, in which the question was fully stated to your Lordships, who, by your decision, directed that the trial should be before the Court of Exchequer, without the intervention of a jury.
"JAMES ABERCROMBY."
5th July, 1815.
The Appellate Court affirmed the judgment of the court below.
This appeal arose out of a dispute concerning the purchase of Ballakermeen, in the parish of Onchan..both the applnt. and the respndt. claiming to have purchased the same from Daniel Quark and Margaret his mother.
Upon a hearing before the Privy Council, the following inter-locutory judgment was made 2nd Feb., 1824.
Their lordships are pleased to order that the hearing of the said appeal do stand over, and that it be referred to the Clerk of the Rolls of the Isle of Man, to inquire and state to their lordships what was the nature and extent of the title or interest of Daniel Quark and his mother, respectively, in the estate of Ballakermeen at the time of the execution of the bond by Daniel Quark to the respndt., dated the 25th of April, 1818, with liberty to state any special matter ; and that Daniel Quark and his mother do have notice of this order that they may attend the inquiry hereby directed.
Thomas Moore, of Baldromma, in the parish of Kirk Lonan, in the Isle of Man, and John Moore, his eldest son, on the 3rd of March, 1810, jointly executed a deed of that date, by which they charged a certain estate situate in the before mentioned parish of Lonan, called Baldromma, by way of mortgage, with payment to Margaret Christian Stevenson, spinster, of the sum of £2,000 with interest, and in default of payment (after twelve calendar months notice to be by her given for that purpose) it was agreed that it should be lawful for her to enter upon the mortgaged premises " and the same, or a sufficient part thereof, to sell and dispose of by public sale for the payment of the said sum, with all interest, costs, and charges."
Margaret Christian Stevenson subsequently advanced other sums to Thomas Moore and John Moore, or one of them, for securing the payment of which, they jointly executed further mortgages upon the before mentioned estate.
Margaret Christian Stevenson afterwards became the wife of John Quilliam. An action having been brought in their joint names against Thomas Moore and John Moore, to recover the amount of the debt due on these several mortgages, Deemster Gawne awarded execution for £3,344 1s. 10¼d., and it was ordered that in case of a deficiency of personal chattels of the Moores to satisfy the execution to the extent of £2,000, British, with interest thereon from the 14th of July, 1817, a sale of the whole, or a sufficient part of the estate should take place, to discharge the said sum of £2,000 with interest and costs.
The execution was given to the respndt. to enforce in his capacity of Coroner. He was unable to find any personal effects to pay the judgment, and therefore attached the property given in security, and the jury appraised it to the sum of £2,700, which was insufficient to discharge the amount of the principal debt of £2,000, with interest and costs.
On the 10th April, 1828, the respndt. put up the whole estate for sale, and the appint. became the purchaser, by Captain John Quilliam, as his agent, for the sum of £4,101.
Subsequently the respndt. tendered to Garrett a deed of sale, which he refused to accept, disowning the agency of Quilliam, and for other reasons. Crellin, in consequence, brought his suit in the Deemster’s Court to have him ordered to pay the purchase money, upon a sufficient deed of sale of the whole estate being tendered to him
Upon a hearing, the Deemster dismissed the petition.
From this dismissal an appeal was entered to the Staff of Government in the Island.
21st of August, 1823.
The appeal was heard and the Court decided " that the respndt. in his capacity of Coroner, acted legally in selling the whole of the lands and premises called Balldromma Moar, in the pleadings mentioned, and that therefore the said judgment appealed from ought to be reversed, and that the respndt. Philip Garrett ought to pay to the applnt. the sum of £4,101, British, being the consideration or purchase money of the said estate, upon receiving from the applnt. a deed of sale of the said estate lands and premises."
From this judgment the applnt. Garrett appealed to his Majesty in Council, and alleged that the judgment ought to be reversed for the following reasons
1st.—" Because by the law of the Isle of Man an estate of inheritance cannot be sold in satisfaction of a judgment at law, and therefore the Coroner’s sale was illegal, null and void.
2nd.—" Because the sale of the entire estate was unnecessary and improper, and therefore void, it appearing that the value of the land far exceeded the sum directed to be raised, and therefore a sale of part only of the land was necessary.
3rd.—" Because the deed of sale tendered to the applnt. had not been sanctioned by the Court or approved by its officers.
4th.—" Because the deed so tendered contained no description of the lands to be conveyed, and was in many other points defective, insufficient, and informal.
" JAMES STEPHEN, JUN."
NOTE—The parties subsequently came to an arrangement, the said John Quilliam having agreed to become the purchaser of the estate.
The petitioner in this case had been indicted for burglary, and at a Court of Gaol Delivery held on the 21st May, 1824, was found guilty and sentenced to death. Against these proceedings the said Kelly presented his petition to his Majesty, wherein he stated " that on the 21st day of May, 1824, a certain (supposed) court, claiming to be a Court of Gaol Delivery, in and for the Isle of Man, was holden at Castle Rushen, in the said Isle, before the Hon. Cornelius Smelt, Lieul.-Governor of the said Isle, John Christian and John Joseph Heywood, Esqs., Deemsters, George Quirk, Esq., Water Bailiff, J. M’Hutchin, Esq., Clerk of the Rolls, and James Quirk, Esq., acting Attorney-General of the said Isle ; but the Twenty-four Keys of the said Isle were not, nor were any of them summoned to attend at the said court, nor were the said Twenty-four Keys, or the major part of them, present at the said supposed court, nor did they constitute, nor were they allowed by the said supposed court, so claiming to be a Court of General Gaol Delivery, in and for the said Island, and consisting of such persons as aforesaid, to be present at, or constitute any part of the said supposed court, although the said Twenty-four Keys duly claimed to be present at, and to constitute a part of every Court of General Gaol Delivery, holden within the said Isle, and did duly protest against their exclusion on this occasion."
" That at the said supposed court he was indicted for burglary, and to the said indictment he pleaded the following plea :—"
"The said William Kelly comes, and having heard the indictment aforesaid read, and protesting that he is not guilty of the premises charged in the said indictment, for plea says that he ought not to be compelled to answer to the said indictment, because he says, that from time whereof the memory of man runneth not to the contrary, the Keys of Man have been, now are, and of right ought to be, essential and constituent members of this court, and that the Keys aforesaid are not at this time present in court ; wherefore the said William Kelly says that he cannot obtain now a fair, legal, and just trial by a court competent to try him on the indictment aforesaid. The said William Kelly, therefore, prays judgment, whether the proceedings can now be had thereon against him, and further, that he may now be dismissed from prosecution in and upon the premises."
That the said plea was argued, and the two Deemsters delivered their opinions.
Deemster CHRISTIAN stated, that, in his judgment, the plea was bad, and the court competent to try the prisoner in the absence of the Keys.
Deemster HEYWOOD held that the said court was not duly constituted, and was incompetent, in the absence of the Keys, to try the said William Kelly and that the plea ought to be allowed.
That notwithstanding this difference of opinion, the said supposed court without the advice of the Keys, and without calling upon the Deemsters and Keys to deem the law in that respect, overruled the said plea, and a jury being impanelled the petitioner pleaded " not guilty," and thereupon was tried, found guilty, and condemned to death ; whereupon he presented his petition to his Majesty, praying that the proceedings might be set aside for the following reasons :—
lst.—"Because from time whereof the memory of man is not to the contrary, the Twenty-four Keys of the said Island, or the major part of them, have always of right been present at, and have always constituted an integral part of all Courts of General Gaol Delivery, duly constituted and holden in and for the said Island, and without the presence of the said Twenty-four Keys, or the major part of them, no Court of General Gaol Delivery hath been, or can legally be, constituted or holden in and for the said Island, according to the laws and customs of the said Island, as appears by the documents and affidavits hereunto annexed.
2nd.—" Because, according to the laws and customs of the said Island, when any doubt or question arises concerning the laws of the said Island, the Governor is, in that case, to call the Deemsters and Twenty-four Keys before him, to deem the law in that matter, as appears by divers records, authorities, and documents hereunto also annexed.
3rd.—"Because the said difference of opinion between the two Deemsters as aforesaid, at the said supposed trial, did constitute such doubt and question as, by the laws and customs of the said Isle, ought to have been determined by the two Deemsters with the assistance of the Keys. But the said Hon. Cornelius Smelt, Lieut.-Governor of the said Isle, who then presided in the said supposed court, did not at the said supposed trial, as he ought to have done, according to the said laws and customs, call the said Deemsters and Keys to deem the law in that matter.
4th.—"Because the objections taken to the said indictment, by the advocate of the said William Kelly as aforesaid, at the said supposed trial, did also constitute such doubt and question as, by the said laws and customs, ought to have been determined with the assistance of the Keys. But the said Lieut.-Governor, who then presided in the said supposed court as aforesaid, did not as he ought, according to the said laws and customs, call the said Deemsters and Keys to deem the law in that matter.
5th.—"Because the said William Kelly, being at the time of the said supposed trial, an infant under the age of fourteen years as aforesaid, ought not, according to the said laws and customs, to have been arraigned upon the said indictment, but ought on the inquisition taken against him, to have been corrected and punished at the discretion of a Court of General Gaol Delivery.
"H. BROUGHAM.
"E. H. ALDERSON."
Upon behalf of the prosecution it was humbly submitted that the judgment ought to be upheld for the following, amongst other reasons :—
lst.—"Because the Keys are not, as the petitioner alleges, essential and constituent members of the Court of Gaol Delivery in the Isle of Man.
2nd.—" Because the style of the Court of General Gaol Delivery, which has continued in the same form for upwards of two centuries. does not comprise the Keys as forming a part of the said court.
3rd.—"Because where they do form a part of a court, as in the case of the Tynwald Court, they are uniformly included in the style of such court, as appears by the records of the Island, which exist for upwards of two centuries.
4th.—." Because the uniform omission of the Keys in the style of one court, and their uniform insertion in the other, sufficiently points out when they do, and when they do not, form part of the court.
5th.—"Because when the Keys do attend at a Court of Gaol Delivery, it is by virtue of a summons from the Governor, for the purpose only of giving their advice and assistance if it should be required.
6th.—"Because the Governor may, by the law and practice of the Island, if he thinks fit, require and compel the attendance of the Keys in any of the superior courts in the Island, to give their ad-vice and assistance ; but they do not thereby become members of such courts, or exercise any judicial authority therein.
7th..—"Because the power exercised before the revestment by the Keys, in passing upon the proceedings of the jury at a gaol delivery, has long fallen into disuse ; nor has any attempt been made since the revestment to renew it : no act, therefore, of his Majesty in Council has ever recognized such power, and which, it is conceived, was Unconstitutional and illegal.
8th.—" Because in the Commissioners’ Report of 1791, Appendix C. No. 1, there is given by Deemster Moore, who held this office upwards of twenty years, a full statement of the constitution of the Isle of Man ; and although it comprises the following head, ‘ Keys—their Judicial Character,’ yet the said Deemster does not state or intimate that the Keys had any judicial authority in the Court of Gaol Delivery.
9th.—" Because the members of the House of Keys formerly served upon juries in capital cases, and may still be required to do so ; which is inconsistent with their claim to form a part of the court.
"J. S. COPLEY,
"CHARLES WETHERELL,
"JAMES CLARKE."
The case was referred to the Lords of the Privy Council, and, upon a hearing, on the 19th of July, 1825, their lordships were of opinion "that, by the laws of the Isle of Man, the Keys do not form an integral and constituent part of the said Court of General Gaol Delivery, and that their not having been summoned to be present at the said court does not affect the validity of the judgment pronounced against the petitioner."
NOTE.—In this case the British Government, with characteristic humanity, directed the petitioner’s advocate to bring forward the question in the nature of a petition of appeal, and the Government afterwards paid the petitioner’s expenses. After the judgment of the Privy Council against the petitioner, the sentence was commuted to transportation for life.
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