case earl OF bath against Sherwin S c bro p c and ed the court of chancery may  grant a perpetual injunction after five trial at bar on the same point and  verdict the same way S c Prec Ch S c Eq ab S c bro p c S c viner S c viner the  case before the court be thus a vexatious person have try his right in a  ejectment at law five several time the court of chancery be move for a  perpetual injunction to stop all further proceed at law a the single question  on all these five trial at bar be whether Christopher duke of Albemarle be or  be not the lawful son and heir of George duke of Albemarle notwithstanding the  uniform event of these five trial in favour of duke Christopher other  declaration in ejectment be deliver whereupon this bill be exhibit in chancery  pray that all question touch the legitimacy of duke Christopher or concern his  be the son and heir of duke George may be quiet and extinguish and to that end  that a perpetual injunction may be award to stay all further proceed at law  upon the say pretend title c S c brown p c a Cowper Lord chancellor be of  opinion that it can not be grant the jurisdiction of the court of chancery be  general divide into three part fraud trust and accident it be plain that the  court have not a power to do what be desire in virtue of the two first branch  of its jurisdiction nor can it I think under the modern report er p last for  by accident be mean when a case be distinguish from other of the like nature  by unusual circumstance for the court of chancery can control the maxim of the  commonlaw because of general inconvenience but only when the observation of a  rule be attend with some unusual and particular circumstance which create a  personal and particular inconvenience modern report this now be the case  before the court for it be a know maxim of the commonlaw that a man may try  his title as often as be please in a ejectment now for this court to determine  that one two three or more unsuccessful trial by ejectment shall be peremptory  quid other than to assume a legislative power and alter the maxim of the  commonlaw but first it may be object that this be sometime do for be not the  penalty of a bind due by law in case of nonpayment of the money upon the day  and yet this court decree not only upon extraordinary case where the payment  of the money at the time appoint by reason of some accident or misfortune be  become difficult or impossible but even in all case where the obligor may have  comply with the condition that the penalty be not forfeit but to this it may  be answer that the court in this conduct be sure of do justice with a unerring  hand and in all event for the court never save the obligor from the penalty of  the bind before he have make a full satisfaction to the obligee both in  respect to the principal interest and cost but now shall the court decree that  two three or more unsuccessful trial by ejectment shall be peremptory the  court will be very far from do justice in all event for proceed at commonlaw  be tie up to very strict rule and a man who have a very good title may be cast  through some slip in the proceed or a man may have better evidence at one time  than another beside as often as the plaintiff lose in a ejectment the court  give cost which be by law intend as a recompense and though where fee be  liberal give it do not near come up to it yet if thing be manage more frugal  it will come much near modern report second it may be object that where the  court of chancery direct two trial by ejectment and the plaintiff be cast in  both this be peremptory and what difference be there between trial at  commonlaw by ejectment direct out of chancery and those not direct but where  trial be direct by this court the court have a previous knowledge of the  evidence and so the court can the better judge certain it do not follow that  because in trial relate to cause original belong to the jurisdiction of this  court and which be direct to be try at law by this court the court in these  case determine how many trial shall be peremptory therefore this court may  grant a perpetual injunction to proceed at law in matter triable at law and  not in equity and that only for do what the law allow but after all the very  ground of this objection fail for even in case of ejectment direct by this  court two unsuccessful trial be not so peremptory but that upon good cause  another may be grant which strengthen the reason of the commonlaw three it may  be say that good be judge to widen law but this maxim be not to be understand  as that a judge in equity shall alter the maxim of the commonlaw for this will  be to assume a power paramount to the law the utmost that can be mean by this  maxim if it have any meaning in it be that this court provide it have the law  to justify it shall sometime usurp upon the jurisdiction of the court at law a  see Lord mansfield opinion of the meaning of this maxim burr a if this court  shall extend its jurisdiction in this point it may by parity of reason extend  it in other point videlicet determine how often distress shall be take a  collateral warranty be certain one of the harsh and most cruel point of the  common modern report law because there be not so much as a intend recompense  yet I do not find that this court ever give relief in it if I have be incline  to enlarge the jurisdiction of the court I think it will be extreme difficult  to fix any stand rule in this case b the bill pray the perpetual injunction be  accord dismiss S c Prec Chan S c viner Abr but the plaintiff appeal from this  decree to the house of lord and after hear counsel it be order and adjudge  that the decree of dismission complain of shall be reverse and that the court  of chancery shall forthwith issue a perpetual injunction to stay the proceed  at law S c brown Cas parliament b modern report er p trinity term the eight of  queen whether in the queen bench sir John holt Knt chief justice sir John  Powell Knt sir Littleton powys Knt sir Henry gold Knt justice sir James  Montague Knt attorneygeneral sir Simon Harcourt Knt solicitor general