brown case richard Maguire appellant richard maddin respondent that February r  S c Ord r although a jury find only sixpence damage and sixpence cost yet the  party prevail shall have his cost to be tax viner vol p can Eq can ab can the  appellant in the month of April put several good and merchandise to the value  of pound sterling on board a ship of his call the king David then lie at the  port of Dublin to be send to and sell at the madeiras and other Spanish island  and at the request of the respondent employ John maddin the respondent son a  young man under the age of twentyone to be his supercargo and factor upon the  respondent engagement by a note under his hand that his say son shall  discharge his trust faithful and honest the appellant accord on the that of  April give instruction in write to the say John maddin for his conduct and  behaviour in the say trust and therein among other thing order he to sell his  whole cargo for ready money and to bring home with he such ready money as he  shall receive and if he can not sell all the say good for ready money and the  wine of that season shall not be good that he shall barter such of the good as  shall remain unsold for the best malmsey and palm wine of the next season and  bring they with he and give he direction how he shall dispose of they at his  return in a few day afterward the ship sail from Dublin and on the that of may  follow arrive at fyall where the say John maddin sell part of the good for  about pound sterling in ready money and the rest he barter with one Thomas  Maguire at port oratavia in the island of teneriff and agree with he that he  shall give of the best malmsey wine the full value of the cargo at a price to  be agree on and if the price of wine shall not be break at the time that  maddin be to embark they then the price be to be settle by person to be name  by he and the say Thomas Maguire these wine be to be ship as early in the  month of December as any ship there shall be load and as many of they be to be  put on board the ship king David as she can carry and the rest be to be send  accord to the order of maddin or the appellant this agreement with Maguire be  make on the d of August and on the that or saint of that month maddin cause  the master of the ship to set sail and he himself come away with her empty to  Dublin have leave all the appellant effect behind he and particular the ready  money for which he have sell some part of the good without wait for or so much  as settle the price of the new wine contrary to his say instruction and also  to the direction give by the appellant to one Owen who go with he and who  instruction he often see brown in consequence of this conduct the appellant be  force to send another ship on purpose to teneriff to bring home the say wine  and money and be at a new expense of insurance for her though he have before  insure the king David and be likewise at the charge of send another supercargo  by which and by the loss of a early market the appellant sustain damage to the  value of more than pound sterling the appellant therefore in Hilary term bring  his action on the case against the respondent in the court of king bench in  Ireland and assign for breach of trust in the say John maddin his not bring  home the appellant ready money for which he have sell part of the cargo and  his bring home the say ship empty but the respondent instead of plead at law  where alone the matter ought to have be determine file a bill against the  appellant in the court of chancery in Ireland and have therein set forth the  agreement to make his son supercargo to the say ship and his own note for his  say son faithful discharge of the trust and pretend that he must examine  witness in the say island of teneriff he pray to be relieve in equity and  obtain a injunction for want of the appellant answer which be afterward order  to continue till the hear of the cause brown er p the appellant have answer  and issue be join and witness examine the respondent have not examine one  witness beyond sea though the only equity in his bill be that he can not go to  a trial at law without examine witness abroad the cause be hear on the that of  July when upon open the bill and answer and without read any proof on either  side the Lord chancellor be please to decree that the deposition of such  witness take in the cause as by reason of death or any other lawful cause to  be make appear by affidavit can not be present on a trial at law shall be make  use of and give in evidence for the plaintiff or the defendant on any trial at  law and his lordship reserve the consideration of cost till after the trial  and order the bill to be retain accord after this decree the respondent put in  a long special plea to the appellant declaration but which not contain any  defence against the appellant demand he demurrer to it and the respondent have  join in demurrer the same be argue and judgement give for the appellant  whereupon a writ of inquiry be award and by order of the court of king bench  be execute in the presence of one of the judge of that court and upon the  execution thereof the appellant full prove that by reason of the say John  Maddins bring away the ship without her cargo the appellant sustain more than  pound damage in the fraught of the ship which he send to bring home the wine  that maddin shall have bring with he and in the charge of insurance and a  supercargo and pound more by reason of the loss of the early market which the  king David will have come to brown if maddin have stay for and receive the new  wine accord to his agreement with Maguire notwithstanding which evidence and  although the judge who be present deliver his opinion that the appellant be  damnified in the aforesaid particular the jury find for the appellant only  sixpence cost and sixpence damage on the d of January the appellant by his  counsel move the Lord chancellor that the respondent bill may be dismiss and  that the appellant may have his cost and be at liberty to enter up his  judgement and take out execution at law on the return of the writ of inquiry  but his lordship be please to say that he will have the say cause set down in  the paper of cause which be accord do the same be hear on the that of February  follow when his lordship on read only the writ of inquiry and the return and  without read any of the proof in the cause be please to grant the respondent a  perpetual injunction and to order the appellant to pay he his cost both at law  and in equity the appellant therefore appeal from this decree insist t  Lutwyche W Hamilton that his case be proper triable at law he ought not to  have be hinder for near six year from proceed in his action by the injunction  of the court of chancery and when the appellant have obtain a judgement by  which it be declare that he have a right and ought to recover damage the  appellant however small the damage give by the jury ought not to have be  hinder from enter up his final judgement and take out execution thereon but as  the whole matter be proper determinable at law and accord so determine and as  no fault or fraud be find in the appellant the bill against he ought to have  be dismiss with cost on the other side it be argue p York c Talbot that there  be no ground or foundation for the appellant action at law against the  respondent because it manifest appear that the appellant have save  considerable by John Maddins careful and prudent management that if judgement  have not be obtain upon the demurrer and if the action have be regular try by  a jury the appellant can have recover nothing and in that case the respondent  will clear have be entitle to his cost at law it be therefore apprehend to be  but just and reasonable in the court of chancery to give the respondent his  cost at law and especial as the consideration of cost be reserve by the decree  of that court until a trial at law shall be have that the party be under a  necessity of come into a court of equity not be able to try the action at law  without the testimony of witness who be examine by commission in the cause and  who evidence can not he have viva voice upon the trial and since it appear to  the court that the appellant proceed against the respondent from the beginning  be mere frivolous and vexatious it be hope that the order the respondent his  cost will appear to be very just and that therefore the decree will be affirm  and the appeal dismiss with cost brown but after hear counsel on this appeal  it be order and adjudge brown er p that the decree therein complain of shall  be reverse and the injunction dissolve and it be further order that the  respondent bill shall be dismiss with cost to be tax and that the same when so  tax shall be pay by the respondent to the appellant jour vol p