Star.
London, England, 1819-07-19 00:00:00

LAW INTELLIGENCE.

COURT OF CHANCERY, JULY is.
DE TASTET D. LOPEZ.
Sir A. PIGGOTT stated that this was an application
to his Lordship to reverse an order of his Honour the
Vice-Chancellor, of the 50th June last, staying a trial
at law, ss3eich was set down to be tried in the Corn-
.mon Pleas, at the present sittings at Nisi Prius, in
London. It was necessary that this motion should be
heard, as it was important, as it related to thndurisdie-
tion of the Court, and particularly so, as ffto law of
this country admitted no man to have an order issued
against him, without his being heard ; for if such a
system was allowed to be introduced in the practice of
the Court, it would create delay, and be a frightful
abut ce of endle,s vexation. The circumstances were,
that Mi. Lopez was a merchant, residing at St. Pe•
tersburgb, and by permission of the Emperor of Rus-
sia, he was allowed to send a merchant-ship to the
Brazils. The ship accordingly arrived at Rio Janeiro,
where having disposed of her outward-bound cargo,
she took in another, and sailed for Russia ; by stress
of weather she was obliged to put into Falmouth, on
which she was seized by the plaintiff at equity, De
Tastet, a merchant residing in this country, and who
was 8:2 years of age, who sold the cargo of the ship.
'Sir Arthur) could not see whether the plain-
tiff had or'had not a lien on the cargo, how it could
bear on the present question, as no demand of his
could. justify him in committing an illegal act.—
The defendant brought his action at law against the
plaintiff in June, 1816, and such was his delay, that
be did not file his bill in that Court until June, 1818.
The bill Was extremely voluminous, and the whole
aim.of it was, to prove that the defendant at Equity,
Mr. Lopez' had two partners, and, by which means,
to nonsuit him at law. The action, however, was
Wed in the 'Court of Common Pleas, and the Jury
returned a verdict for Mr. Lopez, with. £37,000 ca-
Mans. Those damages might appear large ; but it
WAS not more than one-third of what the defendant
would have received, if the ship had been allowed
to proceed wilt her cargo to St. Petersburgh. An
amended bill was afterwards filed by the plaintiff in
that Court, for a discovery. An application was also
made to the Court of Common Pleas for a new trial,
which was granted, on the defendant at law giving
proper security for the payment of the verdict of
£31,000, The Court of Common Pleas also granted
a Commission to go to Russia to examine Francisco
Lopez, the son of the plaintiff at law. The Commis-
sion issued on the 11th of January, awl did not return
from Russia until the 20th of June, 181 a; and oa
the last day of that month, an application was
made to his Honour the Vice. Chancellor, for an
order to stay the trial at Pawl On what grounds suc
an application was made, he (the Learned Co )
was at a loss to know, as the order for the original
trial did not issue from that Court. On the same
day a motion was made in the Court of Common Pleas
to suppress the depositions which had been taken be-
fore the Commissioners at St Petcrsburgh ; the motion
was, however, refused by the Judges of that Court,
sr--ithout hesitation. An affidavit was-sworn on the 29th
of June, and filed on the SOth, the very day the ap-
plication was made to his Honour. It contained cir-
cumstances which, of course, the defendant could not
rebut by a .counter-affidavit, but which his Counsel
declared in Court he was quite ready to rebut, if time
was giver, for that pnrpose. The affidavit, however,
was permitted by his Honour to be read, and the
~enotios, was granted. He had now to ask of his Lord
ship to reverse that order, and he had no .doubt he
. would do so ; as in the first place, the Court had no
jurisdiction in the case, the order for the ofiginal trial
being made in a Court of Law ; and, `madly, because
it was against the known practicc of the Court, which
if his Lordship allowed to be disturbed, would tend
to unnecessai y litigation.
Mr. WETIIr.RLI.t followed on the same side.
The Loan CUANCELLOE—I am at loss to know
11-)w an affidavit made and filed under such circum-
s..ance. could be read in any branch of this Court. It
via be morally impossible to go on with business,
4:: an affidavit filed in this way is allowed to be read
is another place, and cannot be read here; and,
while I sit in this Court it can never be read. It is
most unpleasant that a general and invariable rule
of practice does not operate in both places—for,
by going on in this way, it will be impossible
to do justice to the suitors of the Court. I must
state further, that it would be difficult indeed to
convince me that this motion should have been
granted by the other branch of the Court, unless there
were other circumstances to support it than the mere
reading of an Affidavit, which Counsel were denied
the tight of answering. Whatever others may do, I
am determined, ishile I have the honour of sitting
here, to administer justice between parties by the
only effectual means which it can be administered—
that is, by hearing both sides, and that on every point
that can be urged.
Mr. Mutt, Counsel for the plaintiff, said, that he
did not expect that the merits of the ease would have
been gone so fully into as it had by his Learned
Friends, as it was a question that only related to a
point of practice. The first thing to consider was, on
what point did the Vice-Chancellor proceed when he
made the order complained of. He was ready to ad-
mit it was the imperative duty of his Lordship to see
whether a subordinate branch of the Court had or
had not made a judicious order. In the month of
May an order was made by his Honour the Vice-
Chancellor, directing the defendant to lodge with
tile Clerk in Court all Books, Papers, and Writings
in his possession, connected with the transactions
in dispute, which order the defendant had not obey-
ed, and that led to the order of his Honour, which
was complained of. The Learned. Counsel, at consi.,
derable length, contended that his Honour was right
in the view of the case he had taken, for it would nei-
ther he justice nor equity to let the defendant pro-
ceed to trial with the action, while he kept back the
evidence from the plaintiff that was directed to be left
with the Clerk in Court.
Mr. PEPYS followed on the same side.
-Mr. WETHRAELL replied.
The LORD CHA scEtLoa observed, that he would
give his judgment on coming into Court to-morrow'
morning. JULY 16.
The LORD CHANCELLOR, on coming into Court,
delivered Iris judgment in the important case of De,
Tastet v. Lopez, He discharged the order made by

the Vice-Chancellor, on the grotulds, Ist, that the
delay asked for would be retarding the purposes of
public justica ;,2dly, that the Court of Chancery bad
no jurisdiction. as there had not been any application
made to it for an injunction on the general znerits or
nature of the case ; and idly, that the delay which
had already occurred, was such as could not be sanc-
tioned by the Court on any principle of law or equity.
He strongly .animadverted on the conduct of the,
Commissioner sent to St. Petersburgh, and observed,'
that the plea now made for postponing the trial wall
futile, because more information might have been
got, had the agents of Mr. De Tastet done their duty.
He left the parties at liberty to apply to the ChiFf
3ustice of the Common Pleas, if they chose, but his
own opinion was decidedly against the postponement
of the trial ; for he could not forget that it was sworn
in the affidavits that one of the parties said he would
keep this case in Chancery for ten years.