Perine v. Swaim

The Chancellor.

It would be improper to allow the petitioner, Catharine Ferine, to dismiss her bill without costs, unless I am satisfied that she had some reasonable grounds for the filing of the bill. She and her husband filed this bill in 1813, and principally for the purpose of preventing waste; but the bill prayed relief, and the defendants "were called on to answer, and they did answer, and denied all equity in the bill, and set up matter which, if true, showed the claim of the plaintiffs to be groundless and unjust. Issue was joined in the cause, and proof taken on the part of the defendants, but not on the part of the plaintiffs. Surely a plaintiff, under these circumstances, can never withdraw his suit without costs. It is sufficient merely to state the fact, to be convinced of the unreasonableness of the application. The defendants have been put to unnecessary trouble and expense in the defence of a suit most unjustly commenced, if we are *477to credit their allegations, and I have no right to discredit them until the proofs and the merits have been discussed.

The first part of the motion, praying for leave to dismiss the bill without costs, is, therefore, denied.

[ * 478 ]

The other branch of the motion is for leave to use, on the hearing of the cause, the proofs taken in the cross bill, filed by Simon Swaim against the present plaintiff and her husband. It is true, that the same question of fact was the essential ground of each suit, viz. the question on the validity of a deed executed by Swaim, in 1794; but the parties were not the same. The present defendants are Dorothy Swaim and John Dunn, and they were no parties to the cross bill; and though the question may be the same, yet I apprehend the rule requires that the parties, by themselves, or by their privies, by representation, should also be the same, before the depositions taken in one cause . can *be used in another. The rule is so laid down in Wyatt's P. R. (p. 173.) and in the case cited from 2 Vern. 447. The party against whom the deposition was to be used was the same in both causes.

In Chapmans v. Chapmans, (1 Munf. 398.) a record of one suit was held not to be admissible, as evidence in another chancery suit, on the ground that the defendant, and one of the plaintiffs in the latter suit, were parties to the former, but that another plaintiff, and the person under whom both the plaintiffs jointly claimed, were not parties to the former suit. Catharine Ferine is here the party in both causes, and she wants to use, in her favor, depositions taken in another cause, in which she was a party, and the defendants were not. This would be against the most plain and ordinary notions of justice. It would be subjecting a party to the pressure of proof, which he had no opportunity to cross-examine or controvert. A fact stated in the affidavit of the defendant Dunn, shows how unjustly this would operate in the present case. Simon Swaim, the only party in the cross cause, against the present plaintiffs, was old and poor, and unable to procure the testimony of William Sharp, who resided at 400 miles distance, and whose testimony was most material to the very gist of the controversy. The proof in that cause was thus very imperfect on the part of Simon Swaim, and these defendants ought not to suffer, or be put to any inconvenience from the want of knowledge or ability in S. Swaim, to procure full and accurate testimony. They had no concern in his cause, and are not responsible for his acts.

The motion, on both, points, is, accordingly, denied, and the question of the costs of this motion reserved, until the *478consideration of the final disposition of the costs of this suit.

Motion denied.

N. B. After the judgment was delivered, the plaintiff immediately moved to dismiss her bill, on payment of costs, which was granted.