Austin v. Dennis

1 Rec. V.A. Ct. (R.I.) 250

• Court: Rhode Island Vice Admiralty Court
• Decided: April 27, 1744
• Status: Published

Opinion

And the Respond1* Comes into Court and defends and says that true it is in the Cruise afores4 they took the Prize and the Moneys afores4 were divided according to the Articles afores4, And that afterwards the Proponents • (with others) having raised a Mutiny on Board was at his Own Request set a shore on Nomans Key and his share taken from him, it being forfeited according to the Articles, And as to the Pretended Corporal Punishment, they say none was inflicted on the Proponent. And thereupon they pray the Advisement of this Honble Court and to be dismist with Costs.

Thos Ward Adv1 pro Resp*

[Admiralty Papers, II, 53]

Colony of Rd Island, etc. Curia Admiralitatis. At a Court of Vice Admiralty held at Newport on fry day the 27 th Inst. [April] at 9 A Clock in the forenoon A. D. 1744

Before the HonWe Leona Lockman Esqr Judge

A Motion was made by the Respondts for the Appelets to Enact; but the Judge was contented With the Sa Plaintiffs Security.

The Court was Adjourned till Monday the 29th Ins* 3 a Clock P. M. The Court was Open’d Accord® to Adjournm* The Libel and citations read and the Plea Patrick Rogers being Sworn in C* on Oath declared that

Jo11 Austin The Morning he desired to go On Shore and the Officers consented and as he was going Mr Calder desired to see what he had with him When they found he had some Money woh was taken from him and then he refused to go, but was Obliged to go he further says he was whipt by the Gomps Quarter Master for some theft comita some time before A Whole Share 58

John Frazier on Oath declared in Court What Knowledge of you of the Affn betwn John Austin John Calder and John Dennis.

That John Austin was desirous to go on Shore wch was consented to but upon taking his Money Namely 39 Dollars from him, he was not willing to go

Wm Edmunds On Oath in Court declared, Wh* Knowledge have

The Boat8 mate told me he the sa Austin was desirous to go On Shore which I told him I could Obtain his leave wcb was granted, but his Money being taken he refused to go,

David Robinson On Oath What Knowledge have you of any difference or disturbance that was made on board the S P f. [Ship Prince Frederick] the night before sd Austin was set on Shore. There was One Martin Scot he Affronted the Master The Master went into the Cabin for his cane and Struck four or five of the men and fetch’d blood of one Tho8 Roe when the Compy compa to thr Quarter Master and the 'Captain came out when the Company when he discovrd the Sd Qr Mr giving an Acco* of it to the Cap* as usual Layd his hand on the Cap*8 Breast for woh the Cap* was very Angry, there was two men followed the Qur Mr Aft. Martin Scot and Harry Clark One of woh Struck Cap* Dennis Cap* Dennis inform’d him.

Qn Was John Austin the Appell* any ways concern’d in yr Differences

Anr No

Qn Do you know of his Money being taken from him by Mr J. Calder and what sum

Anr Yes thirty nine dollars by Mr Calder whereof he gave him back 3 Dollars

Qn Did he refuse to go On Shore after his Money was taken Away

Anr Yes Afterwards Mr Calder sd he should go on A Shore and Said he shd go into the Boat which he did and then he cryed because his money was kept from him

Qn what Place was he Put on Shore at

Ansr Normans Key A Place uninhabited

Qn Do you know w* he was whipt for

Anr A man that belong4 to the S. left her at Nevis and his Chest was brought upon deck and broke Open by Order of the Officers in wch was Several frocks one of them claim’d by s4 Austin and he laid it down upon the Round House, some of the Company Shifted it and Put Another in the Room of it, woh he Afterw4s claimed, thinking it to be the same, then the People said you dont know Which is yr own, and you shall have none and for that was whipt, by A Vote of the whole Company.

Qt Did you See the Quar1' Masr lay his hand on the Capts Breast

Anr No but the Cap11 Informed him of it

Q* How many men went aft wh the Qr Mr besides the two mention’d

Anr Several but I do not know their Names

Qt How far is No mans Key from Tolola

Anr About 5 leagues

Qt How was this Proponent dismist

Anr There was Provisions sent to him and the others that went on Shore the night before

Cap* Wm Allen Comr of the Brig* Prince William late in Cons*3 wh Cap* John Dennis

Qt Is* Do you know whether A Mutiny happen’d at Normans Key on b4 C: Dennis declare what you know of it

Anr In the Even® I was on Board Cap* Dennis and he and I with some of his Officers being on the Round House, I heard A Disturbance forward and Cap* Denis said it was A Mutiny and I saw the Compy come aft and Qr Master Strike Cap* Dennis with one hand whilst he held him w*11 the Other, I also heard Cap* Denis say Since they had desired to go on Shore they should, there was about forty of His hands that came aft w*h the Qr Mr at the time of Cap* Dennis being struck which was on or About the ninth of November and upon going into the Cabin and bringing out Cutlases the Mutiny ceased. And that David Robinson would have gone Ashore w‘h those Mutineers but the Officers ordered him into the Vessel and at the same time he cryed because they w4 not let him go.

Q* Do you know if he the s4 Robinson was one of the Mutineer

Anr I Cant say he was,

Mr Bull Objects against the Officers being evidence, as parties Interested ■ — ■ Over ruled Mr Peter Marshall, Mr John Gibbs, Mr Rich4 Clark And Wm Gibbs, On Oath declared to the truth of an Instrument Drawn up by them and Produced now in Court and Signed by them all Mr Marshall being Examin’d further

Qt Do you know anything of this John Austins being concern’d in the Mutiny declare what you know

Ansr I was Sitting on the Ra House wth C. Dennis and C. Allen and there being Some disturbance forward, the Master John Gibbs went forward and the disturbance continuing Cap* Denis sa there was a Mutiny and Jump’d of of the Rd House and the Companies Qr Master came aft with near half the Ships Company and took hold of the Cap* and One or two Struck at him, Whereupon I Knock’d Several of them down, which upon our taking arms and upon Several of the Officers coming to our Assistance, they went forward, Presently after woh the Boats1' came from on board C. Allen and went forw? to them and soon came off, saying he wa Stand by his Officers and told us thére wa be A mutiny, on wch we took our arms and I went forwa and order’d such as wa stand by the Vessel and Officers to come aft and take arms to defend us Ag* the Mutineers and several did but John Austin did not come aft, and the same evening C. Dennis declared to the Company that such as would stand by the Comp8 Qr Master might go on Shore wth him and the sa Qr Mas* and' Sev1 Others went on Shore Accordingly, the next morning C. Denis made the same declarn and then John Austin desired to go on Shore and was Accord2 sent on shore,

Qf Who was it that differ’d forward before Mr Gibbs went there

Anr I do not know

Qf Did you hear any Noise before he went forwa

A nr Yes, nor did I hear any blows, but understood there had been some difference, whilst the Cap* and Officers were on shore.

Qf Did you see John Austin anyways Active, in the mutiny

Ansr No, but ca not distinguish one Person from Another it being dark

Qf How many of the Mutineers were cut of besides this man

Anr I do not know of any one

The Court was adjourned to friday next the 4th May*h 1744. 9 AClock A M

The Court being Open’d According to Adjournm*

The Appell* John Austin comes into Court and withdraws his Suit Against the Respond*8 John Dennis and John Calder this 4th day of May A.D. 1744

Henry Bull Adv: Pro Appel

[Admiralty Papers, II, 54]

David Robinson On Oath in Court

David Robinson Boatswain Mate of the Prince Frederick a private man of war Cap* John Dennis Comr on Oath Declares that being at a place called no mans Key in the West Indies on board Sa Sloop this deponent was ordered to get a chest up in woh was the things belonging to Some men who had deserted Sa Sloop and a dispute arrising concerning a frock wcl1 John Austin claimed and the Officers Said was not his Sa frock was put in the place where Sa Austins frock lay by Some persons unknown, and this deponent Says he beleived Said Austin mistook it for his own and Sd Austin was ordered by the Compa and their Quartermaster to be whipt Six lashes woh was done wch made Sd Austin very uneasy and desirous to leave the Sloop Some days after-wards about the 10th of Novr the Master Mr Gibbs having Some words wtId Martin Scott then a hand on board Sa Gibbs went off and then came forwards wth a cain in his hand it being dark Said where is the Raskall and Struck Several persons in his way particularly Thomas Roes upon weh the Compa Quartermaster wth a number of the men went aft to Cap4 Dennis and heard this depo4 Cap4 Dennis Say that Some persons had Struck him and afterwards Saw a Cutlash woh Cap4 Dennis Said he broke in the disturbance and the Quartermaster came to desired this Dep4 that he would give him his money woh he had in his chest woh this deponent did and the Qr Master told him he was going on Shore w4h Henry Clark, he then inquired the occasion and he informed this dep4 only that he must go on Shore and this depo4 Said that as they had been long together if he would go on Shore he would go w4h him on which many of the Compa Said if he went they would go too on wcl1 this dep4 was ordered on board the Sloop again and the Quartermaster came W4h him but went into the canoe again and in her ashore w4h Henry Clark and this deponent further Saith that he understood that Mr Caulder the Cap4 Quarter master had carried the money wch Sa Clark had as his part of the prize into the Cabbin and that Sa Clark went on Shore without it but that he did not See it done, this deponent also Saith that John Austin aforsa on the 11411 of Sa month being the next day was very uneasy and came to him and desired that he would get leave that he might go on Shore and that he would give him five ps of 8/8 if he could get his dismission and he Spake to the Gunner and he to the Cap4 and was Informed that he had leave by the Cap4 Quarter Mastr who ordered the canoe to be manned and him on board but first desir’d to See what he had to carry away least he Should have more than his own and Sa Caulder took 39 ps of 8/8 woh Sa Austin bro4 to him and put them into his hat and carried them into the cabbin and ordered him in the cannoe ashore but Sent him 3 ps of 8/8 by the hands of Peter Marshall the Leu4 w011 I see him receive but went on Shore w4h reluctancy crying and would have Staid Since they would not let him have his money with him. Sa depom4 was not certain it was Mr Marshall who deliver’d said 3 Ps. of 8/8.

David Robinson his mark X

[Admiralty Papers, II, 56]

Thos Roe being Sworn in Court

Thomas Roe A marriner on board the Sloop Prince Frederick a private man of War John Dennis Commander on Oath declares that being on board Sa Sloop near an Island called nomans key in the west Indies on or about the u411 of Novr last the night after a disturbance on board had happened. John Austin a hand on board desiring to go on Shore and the gunner came and told him he had leave and the cannoe was ordered to be manned and John Caulder the Capts Q1' master came to Sa Austin and asked what money he had upon woh he brought some money upon deck wcl1 the deponts understood by the Company to be 58 or 59 pss 8/8 with some other money the Qr master taking Some of it and carried it into the round house and delivered to Sa Austin a part wch he had in his chest before they had Shared any thing as prize and Austin crying refused to go on Shore without his money but it was insisted upon and he accordingly went the Leu4 Peter Marshall giving him 3 dollars as this dep4 understood by the people on board but by whom it was insisted that he Should go on Shore this dep4 declares he does not know And further says that he does not know that Sd Austin was any way concerned in the disturbance on board but that he was in the hole at the time of the disturbance

Newport May 7th 1744 Sworn before

[Admiralty Papers, II, 59]

Thomas Worgan a hand on board the Sloop Prince Frederick a private man of War John Dennis Com1' on his Oath Declares that being on board Sa Sloop at a place called Nomans Key in the West Indies on or about the 10th day of November last it being the night there had happened a disturbance on board. Willm Sweett came to him and Said that Cap4 Dennis ordered him to get of the depon4 the money that was put into his custody by Henry Clark and the dep4 delivered the money to Sa Sweett and as he was informed Sa Sweett gave it to the Cap4 and Said Clark informed him that the Cap4 returned him Six ps. 8/8 and then ordered him on Shore as one of the hands who were concerned in the disturbance on board Mem0 Cap4 Jn° Dennis and Jn° Caulder the Cap43 Qr Master being present objected to the above evidence the above depon4 (as they alleged) being one of the persons concerned in the disturbance above mentioned.

Newport May 7th 1744. Sworn before

Mr Worgan further said that Mr Henry Clark had 49 Dollars taken from him

[Admiralty Papers, II, 58]

Mathew Boston a marriner on board the Sloop Prince Fredrick a private man of war cap4 John Dennis Commr on Oath declares that on the 11th day of November last near a place in the west Indies called Nomans Key being on board sa Sloop Jn° Caulder Cap43 Qr master demanded of Jn° Austin to See what money he had in his possession alledging he might have more than he ought to have upon woh Sa Austin brought about 30 ps of 8/8 but does not know the Quantity exactly wch money sa caulder carried in to the round house. In the morning of sa day the depon4 Says that the Gunner informed him that Sa Austin had upon Some disturbance on board desire’d of the Cap4 to go on Shore and that leave was granted, and that Some time after the Qr Master had carried the money into the round house Peter Marshall the Leu* ordered the canoe to be manned to carry S'4 Austin on Shore wcl1 Austin crying refused to do without his money Sa Marshall offering him 3 ps 8/8 but wether he res4 them or not his dep* Says he cannot tell after w1* it was insisted upon that Sd Austin Should go on Shore and he went accordingly but by whom it was insisted this depon* Says he does not know and further this depon* Says that he does not know of Sd Austins being concearned in the disturbance that happened the night before. Newport May y*4 1744 Sworn before

[Admiralty Papers, II, 57]

And the Defend* John Dennis comes into Court for Plea saith, that he ought to be acquitted from the within Libel for that John Calder one of the Persons against whom the Appell* hath declared and against whom the Citation was granted was not Cited to appear, and therefore by the rules of Law no further Proceedings can be had, and of this pray Judgement

J. Honeyman

[Admiralty Papers, II, 63]

And the Respondent John Dennis comes and defends and says that true it is in the Cruise afores4 th.ey took the Prize and the Moneys afores4 were divided according to the afores4 Articles And afterwards the Proponent with others having endeavored to raise a Mutiny on Board wherein the Proponent actually struck the Respondent whereupon he was set on Shoar at Noman’s Key and his Share taken from him it being forfeite according to the s4 Articles And thereupon the Respondent prays the Advisement of this honble Court and to be dismist with Costs.

J. Honyman Advocates

Tho Ward for the Respondt

[Admiralty Papers, II, 65]

Colony of Rhode Island etc. At a Court of Vice Admiralty held at Newport on thursday the 24th May at ten á Clock A M

Before the Hon11 Leo: Lockman Esq1' Judge

The Court being Open’d and One of the Parties Namely Mr John Calder not being cited nor Present at s4 Court The advocates for the Respond*8 moved for an Adjournment which, was agreed to and Ordered so to be by the Judge till Saturday the 26* Ins*11 10 á Clock A. M.

The Court was Open’d Accordingly Libel and Citn Read —and Mr Honeyman Adv° for the Respond* made a plea that the Libel should be dis-mist by reason Mr John' Calder was not cited to Appear which was Overruled and the Judge Ordered the trial to come on, and the Court was Adjourn’d till monday morning 8 a Clock A: M

The Court being Open’d Accordingly

The Court was Adjourn’d till 3 a Clock in the Afternoon

The Court was Open’d Accordingly.

Mr Honeyman Adv° for the Respond*13 Asked Mr Thos Roe if he heard Cap* Dennis desire all or any of the persons that were inclined to go on shore with the Quar Master to which he Answer’d he heard no such thing

To wo!l sa Question Mr Mathew Boston answer’d He Did hear Cap* Dennis say so.

The Next morning Mr John Austin desired the Boatswains mate and the Gunner to Ask leave for him to go on Shore

Q* Was you in any Port After sa Austin was whipt. before you arrived at Normans Kee when Mr Austin ask’d to go on shore

Ansr No •— not to my knowledge

Qn How long was it before he Ask’d to go on shore that sa Austin was whip*

A.nsr I Reckon about a fortnight

Q’1 Was you at S* Christophers or Nevis during yr Cruise before you came to Normans Key

. Ansr Yes and came to an Anchor there

Qn How long did you lye at S* Christophers

Anr We did not lye one Day at S* Chrisrs but waterd at Nevis

Qn Was Austin whipt before you came to S* Christrs or Nevis

Anr I think He was to the best of my knowledge

Qn Was sa Austin on shore at S* Chrisrs or Nevis or did he ever desire to go on shore there

Anr Not to my knowledge

Qm How come you to say that you were at No port after Austin was whip’d and afterwards upon Other Questns Acknowledged you were at S* Chrisrs and Nevis before you came to Normans Key.

Ansr because my memory failed me

Quest to Mr Morgan

Who was the first Mover or Cause of the disturbance on board the Sloop Prince frederick whereof Cap* John Dennis was Commr

Ansr I did not see the first of it but I heard it was Mr Gibbs by the People on board, who struck Mr Scot and another man and the People Applied to the Companies Qr Master, who thereupon went aft and ask’d Mr Gibbs the Reason who Asked him what business it was of his, Upon which the Qn Master replyed if he was used so he desired to go on shore.

Qn Did any of the People Join to go on shore wth the Qr Masr

Anr Henry Clark said if the Qn Masr went on Shore he would go with him

Qn gy what means did they go on shore In A Boat or Swim on shore

Anr They went in one of the Barges I cant tell Justly which

Qn Was the People Uneasy at Mr Gibbs’s treatment for Striking Mr Scot and Tho3 Roe

Anr Yes further Questions put to Mr Boston

Qn Who was the first Mover or Cause of the disturbance on board the Sloop before mention’d

Anr Mr Gibbs who struck two or three of the hands and fetch’d blood of them and the Reason of it was the sa Gibbs being in Liquor

Mr. Morgan

Qn Was you ever put in Irons whilst you were on the Cruise in sa Sloop

Anr Yes

Qn What was the Occasion of it

Anr Some of the People went to the Cap* and told him that David Robinson and I were agreeing to go on Shore upon which I was Put in Irons

' Qn Do you know when said Austin was whipt

Anr I think at S* Chris13

Qn Do you know or did you hear that Cap* Dennis was Struck or no and by whom

Anr I heard he was Struck by Henry Clark

The Adv° Plead to the Merits

[Admiralty Papers, II, 64]

May 29th 1744

Colony of Rhode Island Curia Admiralitatis I have carefully examined the depositions relating to the Affair between Henry Clark and Cap* John Dennis and John Calder and given due Attention to the pleas of the Advocates on both sides, it does Plainly Appear to me that the sa Henry Clark was aiding and Assisting in the Mutiny which happen’d on board the Sloop Prince frederick in their Cruise for which reason his share was justly forfeited for the Use of the Afores4 Sloop and Company as by their Articles of Agreement sets forth. I therefore dismiss the said Libel the said Henry Clark Paying Costs of s4 Court. Leonard Lockman

Colony of Rhode Island Curia Admiralitatis I have carefully examined the depositions relating to the Affair between Austin and Capt. John Dennis and John Calder it does no ways Appear to me that s4 Austin was concern’d in any mutiny as Alledged Against him but that he was intirely innocent, and that the thirty Nine dollars in his Possession were unjustly taken from him and ought to be restored to him, I therefore Order and decree that the said thirty Nine dollars be immediately Paid to the Register of this Court or his Lawfull Deputy in order to be by him restored to the sa John Austin, The Defendant John Dennis Paying Cost of sa Court.

Leonard Lockman

[Admiralty Papers, II, 66]