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[from Advocate's Notebook, 1847]
LIB. SCAC., 1836.
This was an appeal from a judgment of the Ecclesiastical Court which had been affirmed by the Staff of Government.
The respndts. stated, in their printed case, that on or about the 18th of June, 1835, the respndts. (carrying on business under the firm of Thomas Wilson and Co.,) on behalf of themselves and such other of the creditors of Richard Jackson, deceased, as might come in and contribute to the expense of the suit, presented their petitioner to his Reverence the Vicar-General of the Isle of Man, thereby stating, that near three years since, George Jackson of the town of Douglas, was duly appointed and sworn administrator of the estate of his son, the late Richard Jackson. That the said George Jackson, in his said capacity, possessed himself of the whole of the property and effects of the said Richard Jackson, deceased, and had illegally disposed of a great part thereof by private contract, viz., to William Dixon, to John Linnard, to Messrs. Heelis and Twiss, to William Callow, and others. That the goods sold by the said administrator to the said William Dixon amounted to the sum of £105 British, out of which he had only accounted for the sum of £90 British. That the said George Jackson had or ought to have received various sums of money belonging to tl~e said estate, of which he had given no account.
[Here follows an enumeration of all the said several sums of money.] That the said George Jackson had not accounted for the sum of £25 British, or thereabouts, which the said deceased had in his desk at the time of his death, and which the said George Jackson possessed himself of.
That the said George Jackson also possessed himself of a number of valuable books, a quantity of linen, a valuable silver watch, seals, rings, gold and silver chains, saddles and bridles, a large and valuable looking-glass, some articles of furniture, and wearing apparel, which belonged to the deceased at the time of his death, but of which he had given no account or made any return.
That the said Richard Jackson was, at the time of his death, entitled to two shares in the Isle of Man Steam-Packet Company, of which the said administrator had made no return, under the pretence that the same were purchased by the said Richard Jackson in the name of his infant children.
That the said George Jackson had made returns of the said estate to the Episcopal Registry, but which returns were false and fraudulent, inasmuch as the said George Jackson had not made turn of goods, cash, property, and effects hereinbefore mentioned as he was by law bound to do.
That the said George Jackson had obtained his Reverence’s order staying all judgments against him as administrator of the said estate.
The petitioners submitted that the said George Jackson, by such his fraudulent conduct as aforesaid, had made himself personally liable to pay the whole amount of the orders granted against him as administrator as aforesaid.
The petitioners, therefore, prayed a hearing of the said petition, and that, upon proof or admission of the matters aforesaid, his Reverence might be pleased to quash and set aside the said stay granted as aforesaid ; and that the petitioners might be at liberty to enforce their orders, which they had obtained against the said George Jackson, as administrator of the said estate ; and the petitioners further prayed for such other relief as the case might require.
The said petition came on to be heard in June, 1835 ; and it was ordered that depositions of witnesses should be taken, and that the petition should stand over in the meantime.
Evidence was gone into on both sides before the Registrar, and the cause was finally heard on the merits before Vicar-General Hartwell, when, after taking time to advise with the other judges, he made the following order:
" Upon hearing this petition in presence of parties, or their advocates, and upon reading the depositions and proceedings in this cause, and upon hearing what was otherwise offered, argued, and alleged on behalf of the parties respectively, I am of opinion that the deft., George Jackson, in his capacity aforesaid, not having properly administered the said estate as thereunto required, has made himself personally liable and answerable to pay to the petitioners the amount of their respective claims, at the rate of twenty shillings, British, in the pound : it is hereby ordered, that the deft. do pay to the petitioners the amount of their claims at the said rate of twenty shillings, British, in the pound, together with die costs of the proceedings to be taxed." The deft. appealed from the said order to the Staff of Government of the said Island ; and on the 18th February, 1886, the Court of Appeal made the following order :—
Upon hearing this appeal, in presence of parties or their advocates, and upon reference to the Vicar-General Hartwell’s judgment, bearing date 27th November, 1825 ; and upon consideration had thereof, and of what was otherwise pleaded, offered, argued, and alleged, on behalf of the parties respectively : this Court is of opinion, that the said judgment appealed from ought to be affirmed, and this appeal dismissed with costs; and the same is so ordered and decreed accordingly."
From which last mentioned order the deft. prayed, and was allowed to appeal to his late Majesty in Council, upon the usual terms. But the respndts. humbly hoped the said order would be affirmed with costs, for the following (among other) reasons :— "Because the applnt., not having duly administered the estate according to the law of the Island, is, by that law, liable to pay to the respndts. the amount of their respective claims.
"STEPHEN LUSHINGTON."
The applnt. in his case stated, that in October, 1832, he was appointed administrator of the estate of Richard Jackson, his son, who, in his lifetime, had been engaged in a small concern as a coach maker, at Douglas, in the Isle of Man. The applnt. made sale, by auction, of the household furniture of the deceased, and proceeded to sell, by auction, the stock-in-trade ; and being himself quite un-acquainted with the value of such property, he employed one Samuel Harman (whose evidence appears in the Appendix hereto, and who had acted as foreman of the deceased,) to superintend the sale of the effects, and to collect the debts due to the estate. Due notice was given of the auction, but it was found that the prices offered were so inadequate, that the property would be completely sacrificed ; in consequence of which, Harman stopped the auction, and subsequently sold some trifling lots to various persons, and disposed of the remainder, being the chief part of the property, to oneWilliam Dixon, who is examined as a witness on behalf of the rcspndts.
By the law of the Isle of Man, creditors resident in the Island are allowed one year, from the date of administration, to enter and prove their claims against a deceased person’s estate ; and creditors resident out of the Island are allowed three years for that purpose. In the present instance, the principal creditors of the deceased were resident in England. There is no fixed period by the law of the Isle of Man, within which an executor or administrator is bound to return his inventory ; but in case of unnecessary delay, it is competent for any creditor, by summary application in the Vicar-General’s Court, to have the administrator ordered to return his accounts to the Episcopal Registry.
On the 21st of April, 1885, the applnt. returned an inventory and account of his proceedings to the proper registry. On the 28th of April, 1835, he returned a further account ; and on the 2nd of June, 1835, a still further statement of moneys, received on account of the said estate ; the whole of which returns were made before any proceedings were taken against the applnt. by the respndts.
The claims entered and proved against the estate amount to the sum of £482 5s. ; the clear assets accounted for by the applnt. amount to the sum of £233 17s. 4d., shewing a deficiency of £254 7s. 8d., to discharge the demands against the said estate.
On the 8th of June, 1835, the respndts., on behalf of themselves, and such other of the creditors of the said Richard Jackson, deceased, as might come in and contribute to the expenses of the said suit, presented their petition to the Vicar-General of the Isle of Man, seeking to make the applnt. personally liable for the full amount of all the debts due by the deceased, and so claimed as aforesaid upon the following grounds
1st..—" That the applnt. had disposed of a great part of the property by private contract, which the respndts. charged to be an illegal act -
2nd.—" That the goods sold to William Dixon amounted in value to the sum of £105, out of which the applnt. had accounted only for the sum of £90.
3rd.—" That the applnt. had received, or ought to have received, various small sums of money set forth in the petition.
4th.—"That the applnt. had not accounted for a sum of £225, stated to have been found in the desk of the deceased at the time of his death.
5th.—"That the applnt. had possessed himself of a number of valuable books, a quantity of linen, a watch, seals, rings, gold and silver chains, saddles, bridles, a large looking glass, and other artides which belonged to the deceased.
6th.—" That the deceased was possessed of two shares in the Isle of Man Steam-Packet Company, of which the applnt. had made no return.
7th.—" That the returns of the estate made by the applit. were false and fraudulent."
The applnt. prayed to have the judgments of the Ecclesiastical Court and the Staff of Government reversed, for the following reasons :—
lst.—"Because there was no evidence of the applnt. having been guilty of any fraudulent conduct whatever, in the administration of the deceased’s estate, whereby to make himself personally answerable to any creditor ; and, on the contrary, it was proved that he had done his best to make the effects produce their utmost value.
2nd.—"Because, supposing that by any error in his accounts the applnt. had omitted to debit himself with any sum or sums for which he was legally chargeable, he ought, upon obvious principles of equity, to be charged in account with such sum or sums only, where-with he had so omitted to debit himself ; and, assuming the cevidence for the respndts. to be unquestioned, such error or omission amounted only to £29 6s. l0d., whereas the deficiency of assets for which the applnt. has been adjudged liable is nearly ten times that amount.
"JAMES CAMPBELL."
On the 15th of July, 1848, the appeal was heard before the Privy Council, and the judgments of the courts below affirmed, with £159 1s. l0d. costs.
NOTE- See this case fully reported in 2nd Moore, 177.
This was an appeal from a judgment of Lieut. Governor Ready, and the respndt., in his printed case, set forth that previous to the year 1704, by the Common Law of the Isle of Man, every landed proprietor possessed of property, on which there was a quarry of common stone, was bound to permit any person to enter into such quarry and dig, raise, and carry away such stones as he might require for his own use ; he making reasonable compensation to the proprietor of the soil for any damage occasioned thereby.
The Act of Settlement (promulgated on the 6th day of June, 1704) contains a general saving to the Lord of the Isle, of all such royalties, mines and minerals, quarries and delfs of flag, slate, or stone, as then were, or theretofore had been, invested in the Lord.
This clause seems to have raised a doubt whether the right of the public to quarry stone was not compromised, and by a supplemental Act of Tynwald, promulgated on the same day, it is recited, enacted, and declared as follows ; vide licet :—
" And, whereas, in the saving part of the said Act of Settlement it is mentioned and declared, that all quarries and dells of flag, slate, and stone, are reserved to his Lordship and his heirs, as a royalty and prerogative belonging to them, within this Isle ; which part of the said act seems to restrain the farmers and tenants of the said Isle from digging and getting such sort of common stone as might be necessary for building and making of other improvements in their estates and tenements. Be it, therefore, enacted, ordained, and declared by the authority aforesaid, that notwithstanding the general words in the said Act of Settlement, every tenant and farmer shall, nevertheless, have free liberty of digging, raising, and disposing of all sort of stone and slates upon their respective tenements, and as has been formerly accustomed, so that they be employed only for their own use and for the improvement of their own and neighbours’ estates and tenements ; and that they shall not dispose or make merchandize of the same otherwise, without the license or liberty of the Lord or Governor of the said Isle first had and obtined for the same ; and if any farmer or inhabitant, having a quarry or quarries of limestone, or other common stone, on his or their grounds, shall obstinately refuse or deny liberty to any other person or persons to dig or get such limestones, or other stones, for the improvement of his or their lands or tenements, or otherwise, without paying him a high and unreasonable consideration for the same, then, and in such cases, it shall and may be lawful for the Governor of this Isle, for the time being, to interpose, and order that such person or persons as stand in need of such limestones, or other stones, may dig, raise, and carry away as much as will be necessary for his or their use, paying unto the farmer or inhabitant, on whose lands the same shall be so gotten, such moderate and reasonable satisfaction as the Governor shall think fit to allow."
This statute not only recognises the public right which previously existed, but also directed the course to be pursued in case the proprietor of a quarry should refuse to permit the public to take stones thereout, and empowers the Governor of the Isle of Man to order the party requiring to raise stones to be permitted to do so.
All buildings in the Isle of Man are erected of common stone, it not being usual to manufacture bricks in the Island.
The applnts. are proprietors of the estate called Claughbane, situate close to the town of Ramsey, and the respndt. is proprietor of a ship-yard and premises immediately adjoining the said town. There is a stone quarry upon the estate of Claughbane, the stones of which are of very good quality ; the quarry appears to have been opened and worked many years ago, and it is proved in evidence that considerable quantities of stone were taken out of it so far back as thirty-six years ago, and that the Ramsey Court House, the Church, the Quay, and a number of houses were built of stones taken from that quarry.
It appears that in the year 1813, the proprietor and occupiers of the estate of Claughbane endeavoured to prevent the quarry being used, and closed the road leading thereto, in consequence whereof Norris Moore, Esq., then one of the Deemsters of the isle, being resident in the town of Ramsey, and having occasion to procure stones from the said quarry, on the 29th of April, 1813, presented his petition to the then Lieut.-Governor of the Isle of Man, stating the matters aforesaid, and praying that he might be allowed to dig, raise, and carry away stones from the said quarry, paying such moderate and reasonable satisfaction for the same as the Lieut.-Governor, in his discretion, should think fit to order and allow; and that the obstruction on the road, leading to the said quarry, might be ordered to be forthwith removed.
This petition was heard before the Lieut.-Governor on the 6th of May, 1813, when the following judgment was pronounced; videlicet
" At a Court holden at Castle Rushen, the 6th of May, 1813, upon hearing this petition, in presence of the petitioner, and of Eliz. Callow and Ellen Callow, the defts. therein named, and upon hearing the testimony of Robert Colquitt and John Kaighan, witnesses produced, sworn, and examined ; and upon consideration had thereof, and what was otherwise pleaded, offered, argued, and alleged, by and on behalfof the parties respectively, this Court is of opinion, and doth accordingly order and adjudge, that the petitioner be entitled to dig, raise, and quarry what stones he may have occasion for in the said quarry in the said petition mentioned, and to carry, lead, or draw the same upon the way or road in the said petition also mentioned ; and that the Coroner of Ayre Sheading do forthwith remove all and every obstruction upon the said road, reserving the question of compensation for such damages as the petitioner shall commit in the premises for the further consideration of this Court.
" C. SMELT."
The deft. Ellen Callow, in the foregoing judgment named, otherwise Ellinor Callow, is the applnt. now the wife of the applnt. William Christian. She and the other deft., Elizabeth Callow, her sister were the actual occupiers of Claughbane, the property of Philip Callow, their brother, a merchant residing at Liverpool.
It is in evidence that Robert Colquitt, who was examined as a witness on behalf of the respndt. in this case, was examined as a witness, upon the hearing of Deemster Moore’s petition, on the 6th of May, 1813 ; he proves that the Governor’s order in favour of Deemster Moore was complied with by Mr. Callow, the proprietor of the applnts’. property ; that Mr. Callow formed a new road for the public to use the quarry in dispute ; and the witness states that Mr. Callow told him that he made that road to prevent Deemster Moore insisting upon using the former road to the quarry referred to in his petition. Deemster Moore took what stones he required, and it appeals that afterwards, in the year 1814 or 1815, the proprietors of Claughbane (probably thinking that other parties would not litigate the right) planted trees round the quarry in question, and some years afterwards they also planted the road leading to the quarry, and shut up the road ; by these means the public were shut out from the best quarry in the neighbourhood of the town of Ramsey. The proprietors of Claughbane are, and always have been, wealthy persons, and having shewn their disposition to resist any attempt to take stone from their quarry, persons were deterred from making the attempt by the trouble and expense of the proceedings they must adopt.
In the year 1838, the respndt. purchased some valuable property adjoining the town of Ramsey, upon which he required to make extensive buildings ; for this purpose he applied to Daniel Callow, a mason, who was examined as a witness in this case, and who proved that the stones in Claughbane quarry were so superior to those of any other in the neighbourhood, that he engaged to erect the buildings at twopence per yard less, if the stones could be procured from Claughbane quarry. The respndt. accordingly applied to the applnts. to be permitted to enter the quarry, he making reasonable compensation for any damage that might be occasioned; but the applnts. refused to allow any person to enter the said quarry, and the respndt. thereupon presented the following petition to the Lieutenant-Governor
" To his Excellency John Ready, Lievienant- Govenor and Chancellor of this Isle ,&c., &c., &c.,"The humble petition of Thomas Cummin Gibson, Esq.
" SHEWETH
"That your petitioner has lately purchased certain lands, situate in the parish of Lezayre, and immediately adjoining the town of Ramsey, upon which your petitioner is about to erect a number of dwelling houses and other buildings, and the only quarry wherein your petitioner can get stone with advantage for the purpose aforesaid is an ancient quarry on the estate of Claughbane, in the parish of Maughold belonging to William Christian, Esq., and Ellinor, his wife, that the said William Christian and Ellinor Christian refuse to allow your petitioner to enter on the said quarry, or to raise new stones therefrom although your petitioner has offered to pay any reasonable compensation for any damage which may be done to the said lands, by raising and carrying away the said stones therefrom.
" Wherefore your petitioner prays a hearing of this petition, and that the said William Christian and Ellinor Christian may be ordered to permit your petitioner to dig, raise, and carry away stones from the said quarry, paying such moderate and reasonable satisfaction for surface damage as your Excellency may think fit to order and allow, and that all obstruction placed on the road leading to the said quarry may be ordered to be forthwith removed."
Witnesses were examined, and counsel were heard on both sides. The defence consisted of two points :—
lst.—That there were other quarries in the neighbourhood where stones might be had for building.
2nd.—That the road to this quarry had been shut up for many years, and the quarry not used for twenty years, and that by such non-user the public had lost their right.
To these defences it was replied, that it was proved there was no other quarry so near, or whence stone of such good quality could be had, and that in any event the petitioner had a right to choose that quarry which he thought best, and that as to non-user, no length of time could affect a public right belonging to all persons, secured to them by the Common Law, and recognised by the Statute.
The following judgment was pronounced ; vide licet
" The Court is of opinion, and doth accordingly order and adjudge, that the petitioner be entitled to dig, quarry, raise, and carry away, in and from the quarry in this petition mentioned, such quantity of stones as he may have occasion for, and to carry or draw the said stones upon the road in this petition also mentioned. And it is ordered that the Coroner of Garff Sheading do forthwith remove all and every obstruction upon the said road, reserving the question of compensation for such damages as the petitioner shall commit in the premises, for the further consideration of this Court.
(Signed) "J. READY."
This judgment is in precisely the same terms as that of the 6th of May, 1813, in favour of Deemster Moore, a copy of which was produced and exhibited in this case before the Lieut.-Governor Ready,—and will be found exemplified with the proceedings ; and which judgment of 1813 was acted upon by Deemster Moore, and acquiesced in by the proprietors of Claughbane.
The present appeal is brought from the said judgment of the 7th of March, 1835, which the respndt. humbly submits ought to be affirmed, and the appeal dismissed, with costs, for the following, reasons:—
lst.—"Because the judgment appealed from is entirely according to the law of the Isle of Man, and is supported by numerous precedents similar to that of the 6th of May, 1813, the authority of which is much increased by the fact of one of the Deemsters of the Isle having been a party in the cause.
2nd.—" Because the particular grounds of defence taken by the applnts., even if they had been sustained in fact, were not capable of founding any conclusion of law applicable to the present case.
"JAMES CAMPBELL."
The applnt. in his case stated the Act of Settlement, and the act explanatory of a part thereof, and stated further that the applnt. William Christian, is, in right of his wife, Ellinor Christian, a customary tenant of a certain estate, situate near Ramsey, called Claughbane, upon part of which there was formerly a stone quarry. The last occasion of this quarry being used was in the year 1813, when one Norris Moore, one of his then Majesty’s Deemsters of the Isle, was, under an order of his Excellency the Governor, ailowed to get stone in the then quarry. From that time the quarry ceased to be used ; and in 1814, Philip Callow, to whom the estate of Claughbane then belonged, and under whom the applnts. claim, caused that part of the estate which had theretofore constituted the quarry, to be enclosed with a fence, and to be planted over the whole extent with trees ; from that time down to the time of the respndt’s. claim being made, as hereinafter mentioned, being a period of twenty-four years, no stone was dug out of what had been the quarry, either by the owner of the estate or any other person, nor was any claim made by any person. to exercise any right of digging or quarrying therein.
The trees planted in the quarry ground, as well as other trees which were subsequently planted on the site of the road, which had formerly led to the quarry, remained during the whole of the aforesaid period undisturbed, and the same have now attained a considerable growth.
By the Common Law of the Isle, an undisturbed adverse posses-sion and enjoyment of real estate for a period of twenty-one years, gives to the party who has had such possession or enjoyment, a valid and indefeasible title.
There are several other quarries open in the immediate neighbourhood of the Claughbane estate.
On or about the 27th of February, 1839, the respndt. presented a petition to his Excellency, John Ready, Lieut.-Governor and Chancellor of the Isle, praying, that the applnts. might be ordered to permit the respndt. to dig, raise, and carry away stones from the quarry on their estate of Claughbane, paying such moderate and reasonable satisfaction for surface damage as his Excellency might think fit to order and allow ; and that all obstruction placed on the road leading to the said quarry might be ordered to be forthwith removed.
The petition came on to be heard on the 7th of March last, when it was ordered and adjudged, that the respndt. be entitled to dig, quarry, raise, and carry away, in and from the said quarry, such quantity of stones as he might have occasion for, and to carry or draw the said stones upon the road in the said petition mentioned~ And it was ordered, that the Coroner of Garif Sheading should forthwith remove all and every obstruction upon the said road, reserving the question of compensation for such damages as the respndt. should commit in the premises to the further consideration of the Court.
The applnt. hoped the said judgment might be reversed, for the following reasons
1st.—" Because what formerly constituted the quarry in the Claughbane estate, had, for more than twenty-one years before the presentation of the rcspndt’s. petition, ceased to be used as a quarry and at the time when the respudt’s. petition was presented, there was not a quarry upon the lands of the applnts~ within the meaning of the act.
2nd.—"Because the respndt. did not shew in himself any suffident title to dig stones in the said alleged quarry.
"JAMES CAMPBELL,
"JAMES BOOTH."
7th Jan., 1841.
The Appellate Court affirmed the judgment of the court below.
NOTE.—The respndt. in his printed case set forth the cases of Norris Moore v. Callow.—Lib. Scac. 1813. Scott v. Heywood.—Lib. Sac. 1831. The same parties in a second suit the same year. Heywood v. Scott. Inquest File, 1831. See this case reported 3rd Moore, 351. " Non-user for twenty-One years does not deprive the tenants or farmers of the Isle of Man of the right to dig for, and raise, lime-stone and other stones in the quarry of a tenant, provided the stones, &c., are for the use of the party obtaining them, or to be employed by him in the improvement of his own or neighbour’s estates. By the supplemental Act of Settlement, (6th June, 1704) discrimatory power is vested in the Governor to allow the exercise of this right"
The question in this appeal arose upon the construction of the following deed of settlement, under which the respndt. Jane Elizabeth Teare claimed the estate therein mentioned.
By indenture dated 9th of December, 1803, made between Richard Symons, Esq., of Douglas, of the one part, and John Cosnahan, Esq., (since deceased), and the respndt. John Nelson, of the other part ; it is witnessed, that the said Richard Symons, for and in consideration of the natural love and affection which he had for Henry Allen and Jane Allen, his half-brother and sister, did give, grant, bargain, and sell unto the said Cosnahan and Nelson, their heirs and assigns, certain estates and tenements of Bibaloe and Ballastole, in the parish of Onchan, together with his intacks in that parish, and the estates and tenements of Ballaquark and Shonest, in the parish of Lonan, with his intacks in that parish, to hold unto the said Cosnahan and Nelson, their heirs and assigns, from the day of the date thereof, in trust that they should permit and suffer the said Richard Symons to use, occupy, possess and enjoy, and to receive the rents, issues, and profits, for and during his natural life, without impeachment of waste ; and upon the decease of the said Richard Symons, in trust to receive the yearly rents, issues, and profits, and pay the clear yearly sum of £40 British thereout, to such of the sisters of the said Henry Allen as the said Henry Allen should live with, for the purpose of maintaining and otherwise providing fòr him during his life ; and in case the said Henry Allen should outlive his said sisters, pay, and apply the said yearly sum of £40, to and for his use and behoof during his life, and pay the remainder of the said yearly rents, issues, and profits, after the payment of the said sum of £40 and all necessary outgoings and expenses, to and for the use and behoof of the said Jane Allen, her heirs or assigns; and upon the death and decease of the said Henry Allen, in trust to assure and convey all and singular the said lands and premises, with the appurtenances, unto the said Jane Allen and her heirs, if the said Jane Allen should be then living, or, if she should be then dead unto the heir-at-law of the said Jane Allen, and the heirs and assigns of such heir-at-law. And by the said indenture a power was reserved to the said Richard Symons, during his life, to alter, revoke, or make void the same ; and also a power to him during his life, and to the trustees after his death, to grant leases.
This deed of settlement was regularly executed by all the parties, and afterwards acknowledged by them, and recorded, as required by the laws of the Isle of Man.
On the 8th of January, 1816, Richard Symons died a bachelor and intestate, leaving a brother and three sisters, all of the half-blood, him surviving, viz. : the said Henry Allen and Jane Allen, Catherine Allen and Elizabeth Clarke, formerly Allen, wife of James Clarke, and who was the mother of the respndt. Jane Elizabeth Teare.
Upon the death of Richard Symons, the above-named trustees entered upon the execution of their trust, and on the 26th of the said month of January, they, with the consent of Henry Allen, executed a power of attorney to the said Jane Allen, to do all matters and things requisite and necessary under the above deed ; to grant leases and settings of the lands thereby conveyed ; to receive and apply the rents agreeably to the trusts of the deed ; to prosecute and defend suits at law and equity, and generally to do all other matters and things relating to the property, conformably to the true intent and meaning of the said deed.
In pursuance of and under this power of attorney, the said Jane Allen entered into possession of the said land, and granted leases of parts thereof.
On the 18th of April, 1817, the trustees caused themselvesto be entered upon the Manorial Records for the said estates of Bibaloe and the intack lands.
By indenture, dated 6th of October, 1817, made between the said Jane Allen of the first part, the said Catherine Allen of the second part, and the said Henry Allen of the third part, after an imperfect and inaccurate recital of the said deed of the 9th of December, 1803, and reciting that the said Jane Allen was desirous of settling and assuring the said estates upon her sister the said Catherine Allen, and that the said Henry Allen had consented to assign unto her all right and title which he had or might thereafter have in and to the same (except the said annuity of £40), the said Jane Allen and Henry Allen, in consideration of natural love and affection for Catherine Allen, and, as they alleged, " to carry into effect the true intent and meaning of the said deed of 9th December, 1803," did give, grant, and sell unto the said Catherine Allen, all and singular, the said several estates, lands, and premises bargained and sold by the said Richard Symons, in and by the said deed of 9th December, 1803, together with all rights, members and appertenances to the said several premises belonging or in anywise appertaining, to hold unto the said Catherine Allen and her heirs, from and immediately after the decease of the said Jane Allen, for ever, subject, nevertheless, to the said annuity of £40, secured to the said Henry Allen.
Jane Allen died in January, 1818, having first made her will, whereof she appointed her sister, the said Catherine to be executrix.
Catherine Allen, who had lived with her sister, remained in possession of the estates, by permission of the trustees, until the year 1823, when the said annuity of £40 not having been paid to the said Henry Allen, the respndt. John Nelson (who survived his co-trustee John Cosnahan) proceeded to recover the rents of the estates.
By an instrument in writing, dated 7th August, 1824, under the hand of Catherine Allen, reciting the indentures of 9th December, 1803, and 6th October, 1817, and that the said Jane Allen had since departed this life without lawful issue, whereupon and in consequence whereof, as well as in virtue of the deeds above mentioned, the said Catherine, stating that she being the assign of the said Henry Allen, who was the heir-at-law of the said Jane Allen, was then absolutely entitled to the said estates, subject to the annuities payable thereout to the said Henry Allen during his natural life, she, the said Catherine Allen, in consideration of ten shillings, gave, granted, bargained, and for ever absolutely sold to John Kelly, Esq., and Mr. Robert Cannell, the said estates, &c., comprised in the said indenture of the 9th December, 1808, to hold in trust to permit and suffer her, the said Catherine Allen, to possess and enjoy, and to receive the rents for and during her natural life ; and, upon her decease, in trust to convey the said lands unto John Cain, Jun., of Glendhoo, in the parish of Kirk Onchan, and his heirs and assigns.
On the 23rd of November, 1824, Catherine Allen filed her bill in the Court of Chancery of the Isle of Man, against the said John Nelson, setting forth amongst other things the deed of 9th December, 1803, the death of Richard Symons, the deed of 6th October, 1817, and the deaths of the said Cosnahan and Jane Allen ; and that, upon the death of the said Jane Allen, the complnt. entered into possession of all the lands and premises mentioned in the deed of 1803, and received the rents thereof ; and that within the preceding eight months, John Nelson had taken upon himself, as the trustee to the said estates, to enter into the receipt of the rents, and to take proceedings against the tenants to compel them to pay over their rents to him : and praying that the deft. might be restrained and inhibited from interfering with complnt. in the possession of said property, and that the complnt., on giving security for the payment of the annuity of £40 to Henry Allen, might be left in quiet and peaceable possession of the said estates, and the deft. be ordered to come to an account with complnt. on foot of the moneys he had already received, and for an injunction from taking any proceedings in the capacity of trustee to dispossess complnt.
The deft. put in his answer to the said bill, and other proceedings were had in that suit ; but, subsequently, the parties came to an arrangement, and the respndt. John Nelson, as the surviving trustee, gave a power of attorney to Catherine Allen to receive the rents in future, and she continued to act thereunder until the time of her decease.
Catherine Allen died in June, 1829, and John Cain, who had for some years previously lived with her on the estate of Bibaloe, entered into possession of the estates ; shortly after which, the respndt. John Nelson gave notice to the tenants to pay their rents to himself only.
The above-mentioned suit having become abated by the death of Catherine Allen, John Cain, on 1st March, 1830, filed a bill of revivor, and amended bill, in which John Kelly was joined with him as pltff. against the respndt. John Nelson, and Robert Cannell, setting forth, amongst other things, the bill filed by Catherine Allen against the respndt. John Nelson, and the arrangement subsequently made between them, and the abatement of the suit by the death of Catherine Allen, and also the instrument of 7th August, 1824 ; and stating that the said John Kelly and Robert Cannell had accepted the trusts thereof, and that since the death of the said Catherine Allen, a deed had been prepared and tendered to the pltff. John Kelly, and the deft. Robert Cannell, conveying all the aforesaid lands and premises, pursuant to the trusts vested in them, which deed Kelly was ready and willing to sign and execute, but that Cannell refused to execute, unless complnt. would pay him £200 for so doing : and the said bill prayed, that the said Cannell might be prevented from in any way lending himself to the deft. Nelson, or any other person, to defeat the trusts vested in him by the said deed of 7th August, 1824 ; and that the respndt. Nelson might be restrained and inhibited from interfering with, and from recovering the rents from the tenants of the said lands, during so long time as the complnt. should regularly pay the said annuity of £40 ; and that cornplnt. might be left in the quiet and peaceable possession of the said estates.
On the 23rd April, 1830, an injunction was granted upon this bill, upon condition of the pltff. paying, for the use of Henry Allen, £40 per annum.
The Court of Chancery, by order, dated 10th December, 1833, declared its opinion that the injunction ought to be perpetuated; and the deft. Nelson, during the lifetime of Henry Allen, was thereby inhibited from proceeding at law to recover the rents of said estates, for so long time as the complnt. should regularly pay the annuity of £40 to the said Henry Allen, as the same accrued due.
John Cain continued to pay the said annuity during his lifetime, and upon his decease the applnt., who was his heir-at-law, entered into possession of the estates, and so continued during the lifetime of Henry Allen.
Henry Allen died on the 23rd July, 1841 : at the time of the death of Henry Allen, the respndt. Jane Elizabeth Teare was the heir-at-law of Jane Allen, and as such became entitled, as the persona designata in the settlement of the 9th December, 1 803, to call for a conveyance from the trustees of the estate in question, to her and her heirs and assigns.
On the 27th November, 1841, the respndts., John Teare and Jane Elizabeth his wife, filed their bill in the Court of Chancery of the Isle of Man, against the respndt. John Nelson and the applnt., setting forth, amongst other things,the indenture of 9th December, 1803, and the respndts.’ title under the same ; and praying that the said respndts., John Teare and Jane Elizabeth, his wife, might be declared entitled to the saidlands and premises, and that the applnt. might be ordered to deliver up possession of the same unto the respndt. John Nelson, or the other respndts. ; and that the respndt. John Nelson might be ordered to assure and convey the said lands and premises to the respndt. Jane Elizabeth Teare, and her heirs, in terms of the said trust deed of 9th December, 1803 ; and for an account against the applnt., and for a receiver.
The applnt. put in his answer to the said bill, on the 13th of December, 1841, and at the same time filed a cross bill against the respndts., setting forth, amongst other things, the said indentures of 9th December, 1803, 6th October, 1 817, and 7th August, 1824, and a certain other deed, bearing date the 13th day of June, 1831, whereby it was alleged that the said John Kelly and Robert Cannell had sold and conveyed the said lands to the said John Cain, who had departed this life leaving the applut. his brother and heir-at-law, who thereupon became entitled to the said estates ; and praying that the respndt. John. Nelson might be ordered to execute a proper conveyance, to the applnt., of the legal estate.
The respndt. John Nelson, on 30th December, 1841, put in his answer to the bill of the other respndts., stating, that upon the decease of Henry Allen, he was willing and desirous (as he conceived himself bound to do) to convey and assure the said lands and premises to the respndt. Jane Elizabeth Teare, the heiress-at-law of the said Jane Allen, but was unable to deliver up possession of the said lands and premises to the said respndt., because the applnt. had intruded into the possession thereof, and continued to overhold the same, and refused to deliver them up ; and submitting himself to the guidance of the Court.
The said original cause and cross-cause came on to be heard on 8th April, 1842, when the Court made the following decree
" The Court is of opinion that the bill filed by the said Daniel Cain ought to be dismissed, and the same is so ordered and decreed accordingly. And it is hereby ordered and decreed, that the said John Nelson do, at the. expense of the said John Teare, execute a conveyance of the said estates, lands, and premises, to the said John Teare and Jane Elizabeth, his wife, such conveyance to be settled by the Clerk of the Rolls, if the parties differ about the same. And it is hereby ordered, that it be referred to the Clerk of the Rolls to take and state an account of the rents, issues, and profits, of the said estates and premises, which have arisen and become due since the death of the said Henry Allen; and for the better taking of the said account, the parties are to produce before the Clerk of the Rolls, all deeds, books, and writings in their custody or power relating thereto, and are to be examined on oath, as the Clerk of the Rolls shall direct, reserving the consideration of all further directions until after the Clerk of the Rolls shall have made his report, with liberty to any of the parties to apply to the Court, as occasion shall require." From this judgment the deft. entered his appeal to the Privy Council, and prayed to have the decree reversed, and the deft. Nelson ordered to execute a conveyance to him, his heirs, and assigns, for the following (among other) reasons :—
1st.—" Because according to the true construction of the said indenture of the 9th December, 1803, the said Jane Allen took, under that deed, either an equitable estate in fee-simple absolute; or, which is equivalent, an estate for the life of Henry Allen, with a remainder to herself, which uniting with her life estate, according to the rule in Shelly’s case, conferred upon her the fee-simple.
2nd.—" Because if such construction failed the alternative would be, that on the death of Jane Allen in the lifetime of Henry Allen, he the said Henry Allen under the said indenture, as heir-at-law of Jane Allen, became entitled as equitable tenant in fee-simple, by purchase, and his conveyance of all his right or title, while in contingency or expectancy, by the indenture of 6th October, 1817, operated as a valid conveyance in equity to pass his then present, or any future equitable interest ; and in any case operated against him and his heirs by estoppel.
3rd.— "Because if both the reasons before submitted are insufficient, still the title of the said Henry Allen, or of his heir-at-law, as against Catherine Allen, and the persons claiming under her, is barred by limitation with reference to the law of the Isle of Man in that respect.
"R. BETHELL,
"JAMES CAMPBELL."
On the other hand the respndts. prayed to have the decree affirmed with costs, for the following (amongst other) reasons :—
" Because the limitation contained in the settlement of the 9th December, 1803, was an alternative executory trust in favour of Jane Allen and her heirs, if she should be alive at the time of the death of Henry Allen, and if not, in favour of the person who (Henry being dead) should, at the time of his death, answer the description of heir-at-law of Jane Allen, and the heirs and assigns of such heir; and the respndt. Jane Elizabeth Teare was, in the event which happened, the person pointed out by the deed, and entitled to a conveyance of the estate.
W.W. FOLLETT,
"THOMAS PEMBERTON."
15th July, 1843.
The Privy Council affirmed the judgment appealed from with £159 1s. l0d. costs.
See this case reported in 7 Jurist, 567.
[ the following is added as a guide
m 1741 m 1749
(1) (2)
Richard Symons = Catherine Oates = Richard Allen
d 1747 | ?d 1797 |
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+---------+--------+ +--------+------+-------+--------+---------+---------+
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| | | | | | | | |
Richard Catherine Henry Thomas Jane Jane Katherine Elizabeth John
b 1742 b. 1744 b 1750 b 1752 b 1754 b 1755 b 1759 b 1763 b 1765
d 1816 d 1841 d 1818 d 1829 |
?
| m 1804
+-- = James Clarke
A John Tear married a Jane Elizabeth Clarke Lezayre 1824-09-07 however can't match with above ]
IN THE GOODS OF MARGARET CHRISTIAN QUILLIAM, DECEASED
The following case, though not a decision of any legal tribunal, is, nevertheless, so important to its residents, that I trust a general knowledge of its short details will be found useful.—ED.
Mrs. Margaret Christian Quilliam, a Manx lady, descended from a long line of Manx ancestry, previous to her marriage in.vested a sum of money in the English Three per Cent. Consols, in her then maiden name of Stephenson. Subsequently she married Captain John Quilliam, of the Royal Navy, a native of the Isle of Man, well known as Lord Nelson’s first lieutenant at the Battle of Trafalgar, and who, after the peace in 1815, returned to his native land, never having, up to that time, acquired any domicil in any other country.
Captain Quilliam and his lady resided on their own properties in Castletown and the neighbourhood up to the time of his death; after which the widow also continued to reside on the same properties up to the time of her decease, which happened in October, 1844.
The widow left a considerable personal estate in the Isle of Man, also the said sum in the English funds, and by her will bequeathed the Three per Cent. Consols to a legatee residing out of the Island. The will was, subsequently, proved here, and also in the Prerogative Court of Canterbury.
The usual notice was received by the executor, in the Island, from the Legacy Duty Office, claiming a large amount of duty upon the whole personal estate wheresoever situate.
Payment was resisted, on the ground, that personal property, having no suns, follows, in contemplation of law, the person of the owner, and is governed by the law of the domicil of the possessor at the time of death. Thompson v. Lord Advocate of Scotland 12 Cl., and Fin. 1, H.L., was cited, and relied upon on behalf of the legatee, in the correspondence which ensued.
The following were the facts which the Legacy Duty Office quired to be proved :—
" That the deceased widow was born ‘ in the Isle of Man and married there."
This was shewn by a certificate of her birth and marriage, authenticated by a declaration made in pursuance of the provisions of the 5th and 6th William IV., c. 62.
"The course of life and employments of the deceased’s husband."
These were shewn by evidence of his birth, his general career, and final return to the Island where he died.
" The residence of the lady during her widowhood, and the place of her decease."
These were shewn by declaration as before, and other testimony.
Such evidence having been fully supplied, the Legacy Duty Office, after a most patient investigation of the facts, abandoned the claim, so that the point seems now to be established, that a native resident may invest money in the English funds without its being subject to the legacy duty, provided the testator has not adopted, or does not adopt, a domicil in England, and thus abandon his domicil in the Island.
NOTE.—.It is often a matter of no small difficulty to decide in what place a person has his or her true or proper domicil. Residence is often of a very uncertain character, and intention as to that residence is often still more obscure. Both are sometimes to be gathered from slight circumstances of mere presunption, and from equivocal and perhaps conflicting acts. Great pains must, therefore, be taken to make the statement of facts as full, clear, and explicit as possible. Two things must concur and be shewn—First, residence, and, secondly, the intention of making the place of residence, the home of the party—Ed.
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