for above 20 years, until 1691, [22] when the appellant Shepheard obtained a lease from the Dean and Chapter, of Jarrowslake aforesaid, for twenty-one years, at some very small rent, and soon after attempted to build a ballast sewer, or key, there; which was presented as a nuisance to the river, and ordered to be demolished and abated, and was accordingly done; and in Trinity Term, 1694, respondents exhibited their bill in the Exchequer, stating their right, and the necessary prejudice of any ballast sewer, or key, to be erected upon the said river of Tyne, and therefore prayed an injunction, to prohibit the appellants, and all claiming under them, from erecting such ballast sewer, or key, at Jarrowslake; which bill the appellants answered; and several witnesses were examined on both sides by commission, and before a Baron in London; and the appellants joined in the commission, and their commissioners were present when all respondents witnesses were examined, and cross examined them, and exhibited interrogatories before the commissioners, and examined several witnesses on their part; and appellants having discovered what respondents witnesses had sworn, appellants about two months after exhibited other interrogatories before a Baron in London, differing in many material points from their interrogatories exhibited before the Commissioners; which appearing to the court, it was ordered, that oath should be made by the appellants, or some on their behalf, what witnesses examined before a Baron in London were dead, and the court would consider, at the hearing of the cause, whether their Deposition should be made use of or not: And that the Depositions taken on any interrogatories, varying from the interrogatories exhibited before the commissioners, should be suppressed: And 19th February, 1696, the cause was heard, and the prejudice of this ballast wharf appeared so plain to the court, that a perpetual injunction would have been at once decreed, but that the appellants importuned the court for a trial at law, with which (as they alledged) they would rest satisfied; and thereupon the court directed a trial at bar by a special jury of Bedford, upon the two issues, stated by appellants; and in Trinity Term, 1697, a trial was accordingly had, which continued about 16 hours; and upon a full evidence on both sides, a verdict was found for the respondents upon both the said issues; and on the 10th of February last, it was finally ordered and decreed by the said Court of Exchequer, that the appellants, and every [23] of them, should be restrained from making or erecting any ballast key or wharf at Jarrowslake aforesaid; and that a perpetual injunction should be awarded as prayed; and the appellants, as a ground for the present appeal, pretend that the depositions taken in London were suppressed, and that the witnesses who made those depositions were, before the said trial, unfortunately drowned, whereby the appellants could not make their defence: But the respondents insist, that if the appellants had been aggrieved by the said order for suppressing the said depositions, they should have appealed to the Lords before the trial of the said cause; and that having omitted to do so, they ought not now to be heard against that order; which, however is just and reasonable, and according to the rules and practice of the courts of law and equity: Wherefore, and in regard the said decree is only to quiet the respondents in the enjoyment of a right which they hold by custom, and to hinder the appellants from erecting a nuisance to the destruction of a navigable river; and that the said custom, and nuisance had been tried by two solemn trials at the bar, the respondents insisted that the decree should be affirmed, and the said appeal dismissed with costs.
And (Die Sabbati, 7 Maii, 1698,) after bearing council on both sides, that it was ordered and adjudged by the Lords, that the petition and appeal should be dismissed, and the order and decree appealed from affirmed. Lords Journ. vol. xvi. p. 278.
The Proceedings referred to in the foregoing Case here follow:
At a council held at Greenwich, 1st June, 1634, present the King's most excellent Majesty: Upon consideration of a complaint of the Mayor and Burgesses of Newcastle, against the ballast shoar lately built by Sir Robert Heath, Knight, Lord Chief Justice of the Common pleas, at South Shields, upon the river Tyne, pretending same to be to the great prejudice of shipping and navigation, and to the annoyance and damage of the river, and on hearing the allegations on both sides, with their [24] council learned, it was ordered that the said shoar should be
