case city OF LONDON Appellants thomas Perkins and other respondent that  January Mews dig way see Peterborough earl of v germane bro p c Warwick v  queen college Oxford l r Eq deposition of witness take in former cause relate  to the same matter for which a new suit be institute against another party  ought to be permit to be read as evidence upon the hear of such new cause  although the witness themselves be not prove to be dead the appellant have  time out of mind be entitle unto and receive from all master of ship bring  cheese of any person whatever eastward of London bridge to the port of London  to be sell duty of d per tun for all such cheese in the name of weighage and  in order to collect such duty the appellant have always appoint officer call  yeoman of the waterside to attend with weight and scale to weigh the cheese  and receive the duty but it be usual for the master of the ship on his arrival  in the port of London to give notice to the officer of the custom and procure  they to transmit a account of the quantity of his cargo of cheese to the lord  mayor who thereupon direct his warrant in write to the yeoman of the waterside  to weigh and permit the cargo to be deliver upon be pay the duty which the  yeoman be ready and offer to do yet as the quantity be express in such warrant  and that take from the account give by the master to the officer of the custom  the duty have be usual pay accord to the quantity mention in the warrant and  the actual weigh omit at the request and for the conveniency of the master  unless the quality be dispute brown this duty when pay be apply to the use of  the lord mayor for the time be for support the dignity of his office beside  this duty the appellant be likewise entitle to and claim by several charter  the office of keeper of the great beam or common balance within the city for  the equal weigh of all merchandise between merchant and merchant usual buy and  sell by weight within the say city the officer for this purpose be appoint by  the mayor alderman and commons in common council assemble and the duty arise  upon weigh the say merchandise be apply to the use of the city the respondent  be great importer of cheese and master of ship and have import great quantity  of cheese eastward of London bridge and refuse to pay the brown er p say duty  of d per tun the appellant in Trinity term file their bill in the court of  exchequer for recovery of the same set forth a prescriptive right to the sole  weigh of cheese of all person whatsoever bring by water eastward of London  bridge and that time out of mind the master of all ship import the same ought  to say the say duty of d per tun for the cheese in the name of weighage the  same be allow to they by their respective owner and that no ship ought to be  unladen before obtain such warrant from the lord mayor as aforesaid that this  be reasonable to be pay as a recompense for the officer attendance provide  weight and scale and by reason of the advantage the importer receive in and  about the port of London by the care of the appellant who be conservator of  the say port that this duty have always be pay by the master of ship whether  freeman or foreigner or whether the good import be freemens or foreigner until  the year when one Richard garret dispute the same whereupon a special action  on the case be bring by the appellant against he in the court of king bench  for the say duty where on the general issue plead and a full trial have at the  king bench bar on the merit a verdict and judgement be give for the plaintiff  that in the year the appellant exhibit a bill in the court of exchequer  against William pallister rich and other for a discovery and account of the  cheese import and to compel payment of the say duty allege therein the same  prescription as in the present bill in answer to which the then defendant  insist that the good be freemens good and as such not liable to the duty but  on hear that cause on the that of June it be decree unless cause that the then  defendant shall account to the plaintiff for the say duty and in Michaelmas  term follow the say decree on hear counsel on both side be make absolute and  the then defendant account for and pay the duty and in the same Michaelmas  term a like bill be exhibit by the appellant in the say court of exchequer  against Prickett and other brown set forth the same prescription when the  defendant by their answer insist that the good be freemens good and not liable  to pay such duty and in February on full evidence the like decree be make and  the duty account for and pay by the then defendant accord wherefore the  appellant pray that the respondent may make a discovery of and come to a  account for the cheese so by they import and pay the duty for the same and  that the say duty may be confirm and establish the respondent by their answer  admit that they be master of ship and have import from Chester large quantity  of cheese into the port of London and have not pay for the same that the  appellant have claim a right of tronage of all foreigner good but know not how  they be entitle thereto they also admit that the appellant by charter be  entrust with the great beam and with the weigh of foreigner good but insist  that they be freeman themselves and that the cheese import by they be the  property of freeman and therefore exempt from the say duty and that the say  prescriptive right do not extend to freeman master of ship import freemens  good that the officer do not attend weigh such good though they admit they may  attend to weigh such foreigner good as shall be bring to the great beam but  the good of freeman ought not to be bring to the great beam nor be liable to  pay any duty but be except and exclude out of the several bylaw and ordinance  and act of common council relate to the payment of such duty issue be join and  witness examine on both side the appellant on the saint of November give the  respondent notice that they intend to move the say court of exchequer that  they may have a order for liberty be read the deposition of John green Joseph  clement Robert Hugh and Francis Bancroft take in the say cause against  pallister and other and also the several deposition of Robert Weston Roger  Dawson Joseph clement Robert Hugh and Francis Bancroft take in the say cause  against Prickett and other at the hear of this cause on behalf of the  appellant all which witness be then dead which motion the court on the that of  the same month refuse the grant notwithstanding the like motion have be grant  in the say cause of Prickett and other the saint of February for read the  deposition of the say John green then dead take in the say cause of Palister  and other on the that of December this cause come on to be hear when the  appellant by their counsel offer to read the several deposition of the witness  brown er p examine in the say cause against pallister and other and Prickett  and other but the count be please to disallow the read such deposition because  the witness be not prove to be dead by brown deposition take in the present  cause which the appellant be advice be not necessary however to avoid any  difficulty in this respect as far as it be in the power of the appellant it be  offer by their counsel that they will prove the death of the witness who  deposition they intend to read either by live witness or by affidavit but the  court after read the say verdict and judgement and decree and several  deposition in the cause be please to direct a issue to be try the then next  easter term at the bar of the say court whether cheese import into the port of  London eastward of London bridge for sale in ship of which the master be  freeman of the city of London on account of freeman of London be liable to pay  the duty of d per tun in the name of weighage as demand by the bill the  appellant apprehend themselves aggrieve by this decree and by the court be  refuse their say motion bring the present appeal insist d rider n fazakerley  that it be prove in the cause by many witness that they have time out of mind  enjoy and receive the duty in question without any distinction whatever  between the case of the master be a freeman or the cheese belong to freeman  and other case and that there be no witness examine for the respondent who  contradict this fact or even make the question doubtful that this very point  have come in judgement upon a trial at law in the most solemn manner when a  verdict be give for the appellant and have be twice decree in their favour  upon bill in the court of exchequer and those decree and that judgement allow  to be give in evidence at the hear of the present cause so that there seem to  be no reason why this question shall be send to law to be try over again  unless it be to see whether there shall be contradictory decree subsist at the  same time and of the same court that the defence in both the former cause be  that the cheese of freeman ought not to pay the duty and the prescription be  lie in both of they general without any distinction the appellant therefore  can not have have a decree if the right have not be prove to be as general but  have be codefined to the case of foreigner that the duty of the beam insist on  by the respondent and which the charter and bylaw prove by they relate to be  not the same as the duty in question but a duty of another kind claim by  charter not prescription apply to other use collect by other officer and in a  different manner that it be not usual for a court of equity to direct a issue  where the proof be 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 especial when the fact have previous be determine by a jury and  twice adjudge by the same court of equity but if there can have be any doubt  of the fact upon the proof in this cause that doubt will have be clear by read  brown the deposition in the former cause and which as the decree in those  cause be read ought to have be likewise read it be therefore hope that the  decree will be reverse and that the respondent will be decree to account with  the appellant for the duty on cheese by they import and that the say duty will  be confirm and establish on the other side it be contend I will I strange that  the proceed be regular and the decree just and agreeable to the rule of equity  as to the proceed it be say that the court of exchequer be well warrant in  refuse to make any order upon the say motion because it be not in the power of  a court of equity to make that evidence which be not evidence of itself and if  the appellant at the hear of the cause have show that the deposition have be  take in a cause wherein the same point have come in question and have prove  regular that the witness be dead then the court will undoubted have suffer  those deposition to be read but the appellant fail in both these point for as  to the first the defendant in both the former cause do not appear to be  freeman of the city and therefore the point in question in this cause be not  before the court in either of those cause the only point insist on there be  that the good belong to freeman who be not party to the suit but the duty be  Payable by the master the court will not inquire who property the cheese be  and upon that foundation decree the account and as to the latter the appellant  have not prove by their deposition that the witness be dead and though they  may offer to prove their death by affidavit or viva voice at the brown er p  hear yet it be not usual for a court of equity to suffer any fact to be prove  by affidavit because in that case the adverse party have no opportunity of  controvert the truth of such fact by cross examine the witness and accord to  the rule observe in court of equity no fact be capable of proof by witness  viva voice at the hear except the execution of deed as to the decree it be say  that the duty in question be a demand against the common right and freedom of  every subject of England a burden upon trade and a tax upon a useful commodity  and that it can not be maintain except upon a reasonable custom support by  uninterrupted usage saint it be not reasonable with respect to the present  case for though it may be reasonable and just to lie a obligation on foreign  merchant who receive the benefit of trade to the port of London to weigh all  their good at a public just balance keep by the city in order to preserve a  exact justice in commerce between foreigner and citizen yet by several bylaw  act or ordinance of the city freeman of the city be exempt from such  obligation and as the good of freeman be under no obligation to be bring to  the city beam or to be weigh there and as in fact the good in question be  never weigh there but in the scale of the respondent at their own shop they  have therefore no benefit from this pretend brown custom and ought not to bear  any burden by mean of it and as the appellant be at no trouble or charge about  it they ought not to receive a reward for do nothing and dly it be not prove  that this duty have be pay by such master of ship as be freeman and import  only the good of freeman neither have any of the case upon which trial have be  have or decree obtain come up to the present case for none of the defendant in  those case be freeman import only the good of freeman and therefore as it be  not usual for court of equity to establish right or custom especial such as be  burden some to the subject and for which nothing be do without a trial at law  by a jury which be the birthright of every English subject as the point now in  question have never receive any judicial determination either at law or in  equity and as the appellant be better able to support the expense of a trial  than the respondent and must prevail in it if on a full examination the merit  and justice of the case will support this custom it be hope that the decree  will be affirm but after hear counsel on this appeal it be declare that the  court of exchequer ought not to have refuse to grant a order for the appellant  to have liberty to read the deposition take in the two former cause at the  hear of this cause save all just exception and it be order and adjudge that  the decree complain of shall be reverse and that the respondent shall several  account with and pay to the appellant the say duty of eight penny per tun for  all such cheese as have be import by the respondent respective into the port  of London eastward of London bridge and it be further order that the court of  exchequer shall give proper direction to the deputy remembrancer of the say  court for take the say account jour vol p