Ruff v. Executors of Summers ( 1814 )

From this decree the defendants appealed, and gave notice that they would move at the next sitting of the Court of Appeals at Columbia, to reverse the aforesaid decree, on the following grounds, to wit,

First, — Because the court was not bound by the act of the 25th of May, 1745, nor was it thereby precluded from exercising a discretionary power in affixing the compensation, which was proper and reasonable to havt?, been allowed the defendants in this particular case, prov^et^ ^ did not exceed 5 per cent.

' Second, — Admitting tire Court was bound by the act a^ove alluded to, yet all the facts directed by that act to be tried by a jury, were admitted before the court, originally brought thereby the complainants themselves, who elected the tribunal before which they would investigate the righteousness of their demand: the. court ought, therefore, to have done what a jury would have been bound to do upon similar or the same evidence before them.

Third, — Because, if at any stage of the case, the court had discovered that the intervention of a court of law, or the verdict of a jury was necessary to the complete justice of the case, the court ought then to have suspended its decree and directed an issue to have beep made up and tried, and havo modelled its decree in conformity to. the verdict of the jury, on that point, or those points directed to be tried.^*

Fourth, — Because the court ought not to have decreed the payment of costs out of the pockets of the defendants.

Fifth, — .Because the court ought not to have decreed tli'' payment of interest upon the amount retained. Caldwell, defend ants’ solicitor.

The anneal was heard by the judges Besaussnre, Gad Sard, james and Thompson, who, after argument, unanimously affirmed the decree of the Circuit Court.

* No issue was asked for by the counsel, at the hearing in the Circuit Court of Equity.