Page:The English Reports v1 1900.pdf/1542

examined in the said causes against Pallister and others, and Prickett and others; but the court was pleased to disallow the reading such depositions, because the witnesses were not proved to be dead by [605] depositions taken in the present cause, which the appellants were advised was not necessary. However, to avoid any difficulty, in this respect, as far as it was in the power of the appellants, it was offered by their counsel, that they would prove the deaths of the witnesses, whose depositions they intended to read, either by living witnesses, or by affidavits; but the court, after reading the said verdict, and judgment and decrees, and several depositions in the cause, were pleased to direct an issue to be tried the then next Easter term, at the bar of the said court, whether cheese imported into the port of London, eastward of London-Bridge, for sale in ships of which the masters were freemen of the city of London, on account of freemen of London, was liable to pay the duty of 8d. per ton, in the name of weighage, as demanded by the bill.

The appellants apprehending themselves aggrieved by this decree, and by the court's refusing their said motion, brought the present appeal; insisting (D. Ryder, N. Fazakerley), that it was proved in the cause by many witnesses, that they had, time out of mind, enjoyed and received the duty in question, without any distinction whatever between the case of the master being a freeman, or the cheese belonging to freemen, and other cases; and that there were no witnesses examined for the respondents, who contradicted this fact, or even made the question doubtful. That this very point had come in judgment, upon a trial at law, in the most solemn manner, when a verdict was given for the appellants, and had been twice decreed in their favour, upon bills in the court of Exchequer; and those decrees, and that judgment, allowed to be given in evidence at the hearing of the present cause; so that there seemed to be no reason why this question should be sent to law to be tried over again, unless it was, to see whether there should be contradictory decrees subsisting at the same time, and of the same court. That the defence in both the former causes was, that the cheese of freemen ought not to pay the duty, and the prescription was laid in both of them generally, without any distinction; the appellants therefore could not have had a decree, if the right had not been proved to be as general, but had been confined to the case of foreigners. That the duty of the beam insisted on by the respondents, and which the charter and bye-laws proved by them related to, was not the same as the duty in question; but a duty of another kind, claimed by charter, not prescription, applied to other uses, collected by other officers, and in a different manner. That it is not usual for a court of equity to direct an issue, where the proof is clear on one side, and the matter proper for the jurisdiction of the court, and no proof on the other to render the fact doubtful; and especially, when the fact has previously been determined by a jury, and twice adjudged by the same court of equity. But if there could have been any doubt of the fact, upon the proofs in this cause, that doubt would have been cleared by reading [606] the depositions in the former causes; and which, as the decrees in those causes were read, ought to have been likewise read. It was therefore hoped, that the decree would be reversed; and that the respondents would be decreed to account with the appellants for the duty on cheese by them imported, and that the said duty would be confirmed and established.

On the other side it was contended (J. Willes, J. Strange), that the proceedings were regular, and the decree just, and agreeable to the rules of equity. As to the proceedings, it was said, that the court of Exchequer were well warranted in refusing to make any order upon the said motion, because it is not in the power of a court of equity to make that evidence, which is not evidence of itself; and if the appellants, at the hearing of the cause, had shewn that the depositions had been taken in a cause wherein the same point had come in question, and had proved regularly that the witnesses were dead, then the court would undoubtedly have suffered those depositions to be read: but the appellants failed in both these points; for as to the first, the defendants in both the former causes did not appear to be freemen of the city, and therefore the point in question in this cause was not before the court in either of those causes; the only point insisted on there being, that the goods belonged to freemen who were not parties to the suit, but the duty being payable by the masters, the court would not inquire whose property the cheese was, and upon that foundation decreed the account; and as to the latter, the appellants had not proved by their depositions that the witnesses were dead; and though they might offer to prove their deaths by affidavits, or vivá voce at the