Page:The English Reports v1 1900.pdf/1036

The appellant having answered, and issue being joined, and witnesses examined, (the respondent having not examined one witness beyond seas, though the only equity in his bill was, that he could not go to a trial at law, without examining witnesses abroad,) the cause was heard on the 10th of July 1723; when, upon opening the bill and answer, and without reading any proof on either side, the Lord Chancellor was pleased to decree, that the depositions of such witnesses taken in the cause, as by reason of death, or any other lawful cause, to be made appear by affidavit, could not be present on a trial at law, should be made use of, and given in evidence for the plaintiff, or the defendant, on any trial at law; and his Lordship reserved the consideration of costs, till after the trial; and ordered the bill to be retained accordingly.

After this decree, the respondent put in a long special plea to the appellant's declaration; but which not containing any defence against the appellant's demand, he demurred to it; and the respondent having joined in demurrer, the same was argued, and judgment given for the appellant. Whereupon a writ of inquiry was awarded, and, by order of the Court of King's Bench, was executed in the presence of one of the Judges of that Court; and upon the execution thereof, the appellant fully proved, that, by reason of the said John Maddin's bringing away the ship without her cargo, the appellant sustained more than £200 damages in the freight of the ship, which he sent to bring home the wines that Maddin should have brought with him, and in the charges of insurance, and a Supercargo; and £200 more by reason of the loss of the early market which the King David would have come to, [395] if Maddin had stayed for and received the new wines, according to his agreement with Maguire; notwithstanding which evidence, and although the Judge, who was present, delivered his opinion, that the appellant was damnified in the aforesaid particulars, the jury found for the appellant only sixpence costs, and sixpence damages.

On the 23d of January 1725, the appellant, by his counsel, moved the Lord Chancellor, that the respondent's bill might be dismissed; and that the appellant might have his costs, and be at liberty to enter up his judgment, and take out execution at law, on the return of the writ of inquiry; but his Lordship was pleased to say, that he would have the said cause set down in the paper of causes; which being accordingly done, the same was heard on the 4th of February following; when his Lordship, on reading only the writ of inquiry and the return, and without reading any of the proofs in the cause, was pleased to grant the respondent a perpetual injunction, and to order the appellant to pay him his costs, both at law and in equity.

The appellant therefore appealed from this decree, insisting (T. Lutwyche, W. Hamilton), that his case being properly triable at law, he ought not to have been hindered for near six years from proceeding in his action, by the injunction of the Court of Chancery and when the appellant had obtained a judgment, by which it was declared, that he had a right, and ought to recover damages, the appellant, however small the damages given by the jury, ought not to have been hindered from entering up his final judgment, and taking out execution thereon; but as the whole matter was properly determinable at law, and accordingly so determined, and as no fault or fraud was found in the appellant, the bill against him ought to have been dismissed with costs.

On the other side it was argued (P. Yorke, C. Talbot), that there was no ground or foundation for the appellant's action at law against the respondent; because it manifestly appeared, that the appellant had saved considerably by John Maddin's careful and prudent management. That if judgment had not been obtained upon the demurrer, and if the action had been regularly tried by a jury, the appellant could have recovered nothing; and in that case, the respondent would clearly have been entitled to his costs at law; it was therefore apprehended to be but just and reasonable in the Court of Chancery, to give the respondent his costs at law; and especially, as the consideration of costs was reserved by the decree of that court, until a trial at law should be had. That the parties were under a necessity of coming into a Court of Equity, not being able to try the action at law, without the testimony of witnesses, who were examined by commission in the cause, and whose evidence could not be had viva voce upon the trial; and since it appeared to the court, that the appellant's proceedings against the respondent from the beginning, were merely frivolous and vexatious, it was hoped, that the ordering the respondent his costs, would appear to be very just; and that therefore the decree would be affirmed, and the appeal dismissed with costs.

[396] But after hearing counsel on this appeal, it was ordered and adjudged,