MRP: C10/160/41 f. 2

C10/160/41 f. 2

Editorial history

14/11/11, CSG: Finished the transcription
14/11/11, CSG: Wrote a short abstract

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Abstract

This abstract needs to be written

David Hamilton made answer in Chancery (C10/160/41 f. 2) to the bill of complaint of London merchant Daniel Gates (C10/160/41 f. 1). The suit concerned the Legorne merchant, of which Hamilton was the master and part owner, and which had been chartered for freight by Daniel Gates in November 1668. The ship had departed from London with a mixed cargo, destined for a range of ports in the Mediterranean, including Zant, where it was to load a cargo of currants for the return journey. Subsequent to the ship's return Gates refused to pay the freight and also refused to satisfy the wages of the master and his crew. Hamilton launched several action in the court of King's Bench, to which Gates responded with a suit in Chancery. Detailed voyage accounts were attached by Hamilton to his answer as an annexed schedule, and can be viewed at C10/160/41 f. 3

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Transcription

//The Answeare Of David Hamilton of Limehouse in the County of Middx Marriner//
//defendant to the Bill of Complaint of Daniell Gates Complaynant//

//This Defendant savinge to himselfe all Advantages of Excepcon to the many incertainties of the said Bill of complaint for

//about the tyme in the bill for that purpose menconned did hire and take to freight the shipp or vessell called the Ligorne merchant of London of this

//was such an Indenture of charter party as in the bill is sett forth made sealed and executed by and betweene this defendant and the said complaynant naturally and this defendant saith that the said shipp was in and by the said charter party menconned to//

//be of the content of One hundred and sixty tunns or thereabouts but this defendant beleiveth that in truth the same did containe twoe hundred tunns as is herein after menconned and this defendant saith it is true that the said shipp att the makinge of such//

//contract and charter party was in the port of London but for the more certainty of the said charter party and the covenants therein conteyned this defendant referreth himselfe to the said charter party when produced one parts whereof under the comp:lts//

//hande and seale remaineth in this defendants custody ready to be produced to this hono:ble Court and the other part thereif under this defendants hand and seale this defendant beleives to bee in the complaynants hand and this defendant saith//

//that the said shipp was accordinge to this defendants covenant in the said charter party in that behalfe conteyned ready furnished fitted and provided sufficiently for the said voyage so afre forth as belonged to this defendant before the five//

//and twentieth day of January w:ch was in the yeare of the Lord One Thousand six hundred sixty eight but the true and onely reason why shee did not by that time proceed in the said voyage was because the said complaynant (though often desired by this//

//defendant) had not then sealed his parte of the said charter party nor given to this defendant orders to goe and proceed on the said voyage nor indeed was there a full ladinge on board the said shipp att that time And this defendant saith that he was before//

//the eight and twentieth day of January ready to have taken into the said shipp her full ladinge if the complaynant or any for him had beene ready to have putt the same on board but the truth is that all the said shipps ladings for the said//

//voyage was not putt on board nor offered to be putt on board her till the seaventeenth day of March or thereabouts which this defendant beleiveth to be through the complayn:ts default but doth absolutely deny that the same was occasioned by this//

//defendant or any default of his and this defendant denyes that he had any order or direcons by the said complaynant for his saylinge or goeinge or proceedinge in the said voyage till the eighteenth day of March in the yeare of our Lord One//

//Thousand six hundred sixty and eight but on the contrary this defendant had in a Letter from the said complaynant dated the thirteenth day of the said month of March orders not to stirr from Graves end nor ?cleare the said shipp//

//untill he should have further orders for the same from the said complaynant And this defendant saith it is true that the complaynant did cause some goods to be laden on board the said shipp before the said ffive and twentieth day of January One//

//Thousand six hundred sixty and eight but this defendant saith that there was not her full ladinge nor sufficient to make her well sayle putt on board her by that tyme and this defendant denyeth that the said complaynant did on the sixteenth day of ffebruary//

//or att any time before the said eighteenth day of March give any sufficient direccon or orders to this defendant to sett saile onwards of his intended voyage but saith that he haveing on the eighteenth day of March one Thousand six hundred sixty eight//

//received divers direccons to that purpose from the said complaynant did the very next day to witt the nineteenth day of the said moneth of March sett saile from Graves end on the said intended voyage but what prejudice accrudd or came to the said comp:lt//

//by not proceeding sooner on the said voyage this defendant knowes not but what damage soever he thereby had or susteyned he may thanke himselfe for in that he gave noe sounder orders or direccons for this defendants proceedinge in the said voyage and//

//this defendant saith that he hath heard and beleives it may be true that when the said shipp was fallen downe to Gravesend and lay there the complaynant did send downe fforty Barrells of Tarr to be layd and stord on board the said shipp but this defendant saith//

//that he this defendant was on shore and not present on board the said shipp when the said Barrells of Tarr were brought thither and he saith that Twenty of the said barrells of Tarr were by this defendants mate stowed on board the said shipp and//

//this defendant saith that there was not roome in the said shipp for stowinge any more of the said barrells of Tarr without XXXXX the gunnes of the said shipp and and makeinge them unserviceable but this defendant denyes that he refused to take in the other Twenty barrells of//

//Tarr but saith that his mate cominge on shore to acquaint this defendant with the bringinge of the said fforty barrells of Tarr to the said shipp the waterman w:ch brought downe the same had before this defendant returnd to the said carried backe the other Twenty barrells of Tarr as//

//this defendant is informed and this defendant never sawe the same nor did he returne the same as by the bill is suggested but saith however that there was noe roome in the shipp for the stowage thereof and this defendant doth not knowe howe ?much the complayn:t//

//lost by not carryinge the said other Twenty barrells of Tarr or what he was dampnifidd thereby but saith that he this defendant was in noe default concerninge the not carryinge thereof and this defendant doth not knowe whither the said shipp was for ??dayes laden//

//when she went out as when shee returndd nor howe much shee wanted of being soe deepe ?loaden nor doth he conceive that it is any whitt materiall whither shee were or not she being full laden att her departure from hence And this defendant saith it is true that//

//during all the time that the shipp stayed in the said river of Thames after the ffive and Twentieth day of January One Thousand sixty eight the said complayn:t was att the charge of victuall for the said shipps company and did pay the seamen dureing//

//that time they beinge dureinge parte of the said time imployed and about the heaving out and bringinge in Ballast into the said shipp which was occasioned uppon this account the comp:lt haveinge taken the said shipp to freight for a voyage into the Streights with ??poore goods//

//as he declared unto this defendant after the contract through this defendant and as he beleives the rest of the p:towners of the said shipp XXX ignorant thereof att att the makinge the said contract and the said shipp beinge in the said charter party menconned to conteyne but//

//One hundred and sixty Tunns and therefore not capable of makinge such a voyage by the Lawes of this Kingdome noe shipps being thereby permitted to make such a voyage unless they could be made appeare to be of the burthen of twoe hundred Tunnes)//

//thereupon by the complayn:ts direccon Ballast by weight was putt into the said shipp to prove the cXXXXX of her and the said ballast was heaved out againe she being to carry none in the said voyage he intending to putt in other goods all w:ch was done on the said//

//complayn:ts account and yett the owners of the shipp at his request did voluntarily beare the charge of the putting in and takinge out the said ballast beinge about Two and Twenty pounds and which the com:lt in justice ought to have paid and this//

//defend:t saith and doth averr that he did proceed in the said voyage with as much diligence and speed as he ought and could according to such instruccons and direcconns as he had from the said compl:lt and this defend:t saith it is very true that he did goe with the said shipp into Malaga road and beleives it was//

//be true that the wind well enough served him to goe on his intended voyage but saith that the said shipp being freighted with comodities and beinge a ?rich shipp he the defendant had order from the said complayn:t to stay two or three dayes at Tangier to informe himselfe whether there were warres//

//with Algeers or not and to gett a convoy there which this Defend:t endeavoured to doe but the weather being bad and fowle by reason of a storme of winds att North west this def:t durst not goe into Tangier but afterwards went into Malaga road to gaine some advice whither we had warres with Algeers//

//as this defend:t was informed ??as then had and this defendant went on shoare for that purpose intending to have sayled in lesse than eight hours but being becalmed was forced to stay neere twoe & twenty houres in the whole in the said port but departed from ?thence ?with in that tyme and//

//did not merchandize there att all otherwise than that he sold or gave away one or twoe barrells of beere there of his owne proper goods And this defendant saith it is true that he received orders from the complayn:t not to touch in any port in his returne homewards unlesse he should//

//be thereunto necessitated but saith that in his returne homewards off of Calry upon the Island of Sardinia mett with S:r Edward Spra?gin whoe then informed this defend:t that we had warre with Algiers and that they had shipps about ffourteene or ffifteene sayle and told ?this defend:t/

//that it was scarce possible for him to escape them but promissed this defendant a convoy And this defend:t thereupon for p:rsewacon of the said shipp and goods and merchandizes therein did as he conceived & was advised that by his orders from the comp:lt he ought to doe in such case goe into the//

//port of ?Mahowns in the bill mentoned and there staye twoe or three dayes and not longer but denyes that he spent any tyme there in or about his owne affaires or pleasure but what this def:t did therein was for the comp:lts advantage this defend:t being compelled by such ?extremity as aforesaid//

//for the p:rservaton of the said goods & merchandizes soe to doe there beinge severall English shippes as this defend:t was advised taken in or about those seas by the Algeruies for want of a convoy about that tyme that the defend:t in the said port of Mahowns & this defend:t haveinge//

//gotten a convoy there was ?forced for the company of the said convoy to goe into Alicant & Malaga when the said convoy did take upp another merchant shipps to convoy them and this defend:t did not goe in any other ports on the voyage homewards to his remembrance nor did he goe//

//unto or stay in any of the said ports on any other occasion than is herein mentonned And this defendant saith that he doth not beleive that his goeing into or stayinge in any of the said ports was any prejudice or ?loss XX the said complyanant but but beleives that it was for ?his//

//Advantage and this defendant did come with his said shipp to London in or about the moneth of December One Thousand six hundred sixty nine and this defendant denyes that he ever refused to give to the complaynt a just XXXXXaccount of such moneys as he received on the comp:lts//

//account for freight or of the compl:ts goods sold by this defendant att any place or places or any other of his goods received by this defendant or of any moneys received by this defendant or allowed to him on the complayn:ts account ?but saith that hath given to the comp:lt true accounts//

//thereof but for this compl:ts further satisfaccon (if att least any thinge in reason will sattisfy him) he this defend:t hath annexed a full and true account thereof in the schedule hereunto and XXX which he prayes may be received as parte of his this defend:ts Answeare And this defendant denyeth//

//that he requires and insisteth to have the sd complayn:t to allowe him severall or any matters or things which ought not to be charged to the said comp:lt or allowed by him and he saith that all allowances that he this defendant demands of the comp:lt are comprized within the intent of the//

//said charter party or in the comp:lts orders as this defendant is advised though possibly they may be not menconndd therein in expresse termes And this defendant denyeth that he ever agreed or that this comp:lt to this defendants knowledge ever declared that this comp:lt should not be att any//

//charges or expence whatsoever for any matter or things whatsoever otherwise than is menconned and expressed in the said charter party as by the bill is frivolously suggested And this defendant denyeth that he this defendant doth insist to have to comp:lt to make him allowance of any

//money save what he justly ought to allowe to him or that he chargeth or demandeth of the comp:lt any greater or other summe or summes of moneys than the said comp:lt oweth to this defendant justly upon the said account nd this defendant saith that there is justly due to him this defend:t//

//from the said comp:lt for freight of the said shipp and this defend:ts wages as Master of the said shipp the summe of Two hundred ffifty ffowre Poundes nineteene shillinges & fowre pence and for the comp:lts further satisfaccon this defendant hath in the said annexed schedule comprized and XXXXted a//

//true account of the said freight and wages and of all moneys due to this defendant for port charges and charges in negotiatinge the complayn:ts affaires and of the whole charges of the whole voyage betweene the comp:lt and this defendant which account this defendant averrs to be true just//

//and perfect and prayes that the same may be accepted as parte of this defendants Answeare and this defendant denyes that the complayn:t hath susteyned any damage by any breach or breaches or non performance of any contract or Agreement comprized in the said charter party w.ch//

//on this defendants behalfe or by him ought to have beene performed or that this defendant is any wayes indebted to the comp:lt in any summe or summes of money whatsoever but saith that the said complayn:t is indebted to this defendant for freight of the said shipp in the summe of Two//

//hundred poundes for which this defendant hath brought his accon against the said comp:lt in the Court of Kings Bench att Westminster upon the said charter party and the said complayn:t is likewise indebted to this defendant in the summe of ffifty ffower poundes ?Nineteene shillinges & ?foure pence//

//as aforesaid for this defendants wages as Master of the said shipp during ?his said voyage for which this defendant hath alsoe brought an other accon against the comp:lt in the s:d Co:rt of Kings Bench att Westminster and this defendant saith that the said comp:lt is indebted to severall of the sd shipps company in severall summes of money//

//for thehre (sic) wages and Marriners & seamen in the sd voyage amounting in the whole to Thirty XX poundes seaventeene shillinges and tenn pence and A ptiuculer whereof is conteyned in the sd annexed schedule & whereunto this def:t referreth himselfe appeareth for all which this defend:t standeth and is engaged to the said XXXX the marriners and seamen he this defend:t haveing hired them by the//

//comp:lts order & direccon and the said comp:lt hath by covenant agreed to save this defend:t harmless from such his ingagemt and this def:t saith that unlesse the said comp:lt will pay the said Marriners and seamen the said wages soe to them respectively due as aforesaid and thereby discharge this defend:t from his engagem:t for the same ?to this defendant//

//shall be necessitated to sue the sd comp:lt on the said covenant to compell him ti indempnifye this defend:t from and against the sd engagem:t but this defend:t hath not as yett brought any accon against the said comp:lt upon the said covenant and if the said comp:lt shall and doe pay the respective summes of money to the said Marriners and//

//seamen respectively this defend:t shall and will be ready & willing to deliver upp the said covenant to the said comp:lt & if the sd comp:lt shall & doe pay to this defend:t the said moneys soe as aforesaid due unto this defend:t for freight of the said shippe & for his this def:ts wages together with this def:ts costs att Lawe ?and in this hono:ble//

//Co:rt then he this defend:t shall and will be willing to discharge his said accons brought in the sd Co:rt of Kings Bench against this s:d comp:lt as aforesd & to discharge the sd comp:lt of & from the same but if the said comp:lt shall refuse soe to doe then this def:t humbly hopes unto the ffavour of this hon:ble Co:rt that he shall be att ??Lawe to prosecute//

//the sd accons against the sd comp:lt he this def:t designnige & aiminge att nothing thereby but to recover his said just debt with his costs and charges in this hono:ble Co:rt & att the common Lawe in & about recoveringe the same & this def:t desires not to take any advantage or bond ?fitt of any penalty in the said charter party against the saide Xp:lt and denyes//

//that he ever threatened to make this comp:lt pay any penalty to this defend:t or that he ever denyed that he had received any moneys of any person or for any things on this sd comp:lts account nor did he ever refuse to discover the same or to discover to the sd comp:lt what was said on board the said shipp in her outward bound or homeward bound voyages for whome//

//the same was shipped or to whome they were delivered or what he hath att any time received in respect thereof or of whom or when or for what but this defend:t hath in the said annexed schedule XXXXXted a true and perticuler account of all the moneys by this defend:t received of any person for any things upon this comp:lts account and at XX ptiucler account//

//of all that was layd on board the sd shipp on her outward bound or homeward bound voyage and for whome the same was shipped & to whome delivered & what this defend:t hath received in respect thereof & for what & when he received the same & howe much of the freight he left att Ligorne & Venice with the comp:lts correspond:ts in the said//

//ports & prayes that the said may be taken as parte of this his sd answeare averring the same to be true & full & to conteyne all the sd pticulers to the best of this defend:ts knowledge and denyeth that to his knowledge he received any other moneys on the comp:lts account or that any other goods were laden on board the said shipp than is thereXXXupon And//

//this defend:t saith that he did att his XXX of the voyage cause to be taken such of the sd shipps stores of wood to the cookes store and other things which were left unspent att the end of the sd voyage & caused the same to be sent & delivered unto the sd comp:lt to whome the same ?belongs & he beleiveth that the same was delivered accordingly XXX of XXXXXXXXXXXXXXXXXX//

//he this defend:t doth not knowe nor can sett forth but saith that he believes there was neither any beveridge ??Rice nor any beveridge wine or ?cXXXXX left in the sd shipp att the end of the sd voyage And he absolutely denyeth that he carried or caused any parte of the said shipps stores or wood or anything belonginge to the sd comp:lt in the sd shipp to be carried XXXXXXXXXXXXXXXXX//

//or to any other place or places whatsoever save onely to the sd comp:lt And this defend:t denyeth that to his knowledge or beleife any of the covenants in the said charterparty conteyned in this defend:ts parte to be performed were broken or not pformed And this defend:t saith that neither he this defend:t to his knowledge any other person or persons for ?the ?use of his XXXXXXXXXXXXX//

//or privity hath or had received for the freight of the sd shipp or for any passage that was carried therein or on any other account either from the comp:lt or any other person or psons for him or by his order or direccon or on his account or by the sale or proceed of any goods or merchandizes or otherwise on his account any summe or summes whatsoever XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX//

//XXX but he saith that he taketh it & soe is advised that the passengers freight menconned in the sd schedule belongeth to this defend:t only & not to the comp:lt havinge XXXXXXXX s:d shipp to freight onely for goods & merchandizes

//full true & particular & pfect an account of all his doings & proceedings in relaton to the sd charterpty or voyage & of all moneys any wayes due or payable by this defend:t to the comp:lt or by the comp:lt to this sd defend:t in pursuance or by reason or meanes thereof as he can & this defend:t hath herein & in the said annexed schedule given to the comp:lt a true perfect full pticular account of all goods laden on board//

//the sd shipp both for her outward & homeward voyage with the markes & numbers thereof & by whome the same were respectively shipped & to whome to be delivered & what freight was received for the same or for any passengers or other thing whatsoever during the said voyage or in respect thereof as this defend:t ?positively can according to his best knowledge & this defend:t saith that ?he ?doth ?not ?know//

//?p:ticulars when he departed from Zephalonia but beleives it was about the seaventh day of October one Thousand six hundred sixty nine & by this annexed account it will appeare what moneys he had of the comp:lt in his hands att his departure thence but this def:t cannot otherwise so sett it forth and this def:t saith that ?this Butt of Currans marked (??R) XXXX (3) in the bill XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX//

//for the comp:lts account but for this def:ts owne prop account & this defend:t saith that it is true that a Butt of currans of the comp:lts was XXXXX att Zephalonia in this sd shipps long boate with a Butt & twoe Caratillo of currans of this def:ts owne prop goods w:ch were all afterwards weighed & taken upp againe but what y comp:lt XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX//

//that the same was XXXXXXXX by this defend:t or any default or miscarriage of his or to his knowledge by any of this defend:ts servants or Agents or by theire or any of theire default or miscarriage but saith that the sd comp:lt hath notwithstandinge stopped twoe or three dayes of pay of the seamens & marriners wages belonginge to the sd shipp for satisfacton of ?his XXXXX ?p:rtended to be ??sett ??forth XXXXX by the XXXX//

//XXXX of the sd butt of Currans & this defend:t offers to him that if he would pay into this defend:ts hands the moneys by him soe stopped & which he had in his hands of the sd seamens wages this defend:t would answeare to him & sattisfye him for all the damage that he had by the ??bringe of the said Currans ??Without that trial XXXXXXXXX or ?thinge inthe said bill of complaint//

//conteyned materiall for this defend:t to make answeare unto & not herein & hereby before answered unto confessed & avoyded traversed or denyed is to this defend:ts knowledge true All which matters & things this defend:t is ready to averr & maintaine as this hono:ble Court shall award and humbly prayes to be ?hence discharged XXXXXXXXXXXXXXXXXXXXXX behalfe //

//wrongfully susteyned//

//ffrancis Pemberton [Signature, bottom RH side]

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Commentary

See C10/160/41 f. 1

See C10/160/41 f. 3