Dacres v. Danson

6 Rec. Co. Ch. (S.C.) 67

• Court: Court of Chancery of South Carolina
• Decided: May 8, 1700
• Status: Published

Opinion

To the Right Honourable Joseph Blake Esq. Governor And One of the Lords Proprietors of Carolina, and to the Honourable the Gentlemen of the Councill being the High Court of Chancery for this Province.

Humbly Complaining Sheweth unto the Honourables Your Orator Robert Dacres of Carolina Gentleman That on or about the thirteenth day of January 1698/9 Your Orator being on board of a Ship to take leave of Some Friends. And being there Overtaken in drinke coming home One George Hearne came into Company with Your Orator and Invited him to his the said Hearne’s house, And there perceiving Your Orator’s Disorder, He took that Opportunity to tempt Your Orator to play, And so wone of Your Orator the Summe of Fivty-Nine pounds, and accordingly gott Your Orator being So in drinke to Sign a Note or bill Under his hand to pay the Said Hearne the Said summe of Fivety Nine pounds, And in Some few days afterwards, he the said Hearne demanded the said Summ of Fivety Nine pounds of Your Orator, But your Orator not remembering that he was in the Company of the said Hearne, Or had played with him Or had given any Note or bill for the said Summ of Fivety Nine pounds refused the payment of the Same, Whereupon upon the said Hearne Relating how he had won moneys of your Orator to Col. Thomas Cary and Mr. John Danson of Carolina Merchants They the said Cary and Danson acquainting your Orator with the Same, did propose to your Orator that if he would Venture five pounds they would play off the said Note for £59: — with the said Hearne, And win the Same back again for your Orator, And take up your Orator’s Note, Which Your Orator consenting to, and Engaging to pay the said Cary and Danson — if they Lost so farr as five pounds Upon this Consideration, That what they wone of the said Hearne, it should be to the discharging of your Orators Note of £59 — as aforesaid, And upon this Consideration the said Cary and Danson played with the said Hearne, and wonn of him to the Fule Value of £59 in discharge of your Orators Note, to-geather with more Monys for thenselves, But the said Cary and Danson after having wonn of the said Hearne as aforesaid, pretended to your Orator that they could nott gett his Note for the said Summ of £59; from the said Hearne, Excepting your Orator (for a Colour) would give a Note Either to the said Cary or Danson for the Summ of £59; — And accordingly the said Cary drew a bill for Fivety Nine pounds payab’le to the said Danson Who both of them promised your Orator it should not be made use of against him, but that the same should be given up to your Orator when desired, And your Orator confiding in the Promises of the said Cary and Danson, accordingly Signed the same, and had the Note for £59 payable to the said Hearne delivered to him, But so it is may it please your Honours that the said Danson being bound on a Voyage to England on Or about the Latter End of, the said Month of February or beginning of March 1698/9 Your Orator desired the said Danson to give him up the said Note for £59: so Obtained as aforesaid, According to his the said Danson and Cary’s Promises to the said Orator. And the said Danson replyed that he had put the said Note into the hands of the said Col. Cary and further say’d that the said Cary would deliver your Orator the said Note when desired, When in truth the said Danson had not delivered the said Note to the said Cary, but had delivered the syme to Maj. George Dearsly with Power and Directions to put said Note in Suite, against your Orator, as soon as he the said Danson was gone off, Which the said Maj. Dearsley Accordingly did, in the Name of the said Danson by causing Writts to be prosecuted against your Orator, who was arrested upon the Same on or about the 22th day of March 1699/00 — in an action of Debt for Fivety Nine pounds, And a Declaration upon the Same filed against your Orator the fifth day of Aprill 1699 in the Court of Common Please of this Province, as by the Records of the same doth appear, all which practices of the said Danson are Contrary to all Rights, Equity, and good Conscience, In tender Consideration whereof, And for as much as your Orator is not relieveable in the promises by the Strict Rules of the Common Law, but is altogether remediless in the same, Unless by the Aid of this Honourable Court, your Orator may have A Particular discovery thereof by the Corporable Oaths of the said John Danson Thomas Cary, and the said George Hearne, who are well known and are Satisfied of the Truth of all and Singular the premises before Sett forth, who when they doe answer to these Upon Oath, must and will discover the same, To the End therfore that the said Confederators Danson Cary and Hearne, and Every of them may Sett Forth upon what Consideration the said Note of £59: payable by your Orator to the said Danson was given, And if the Same was for the moneys Lent or Goods and Merchandise sold and Delivered, or any other Lawfull Consideration, And if the same was not Obtained from your Orator as above sett Forth, and Upon noe Other Consideration whatsoever.

Nicholas Trott ²¹ for the Complainant

May it Please Your Honours to grant unto your aforesaid Orator the Writt or Writts of Supoena to be directed to the said John Danson, Thos. Cary and George Hearne, commanding them and Every of them att a Certain day, and Under a certain Penalty, there in to be Limited personally to be and appear before your Honours Court then and there to make direct Answer upon Oath to Every Clause and Article in this your Orators bill of Complaint, as fully as if the Same had againe been reported and interrogated, And further to stand to and abide such Order and Decree therein, as to your Honours shall seem just with Equity.

And also the writt of Injunction injoying him the said John Danson, his Councillors Attorneys and Sollicitors, to Stay and Surcease all further prosecution upon the Note or bill, and that there be noe further proceedings on the Same, untill Other Orders shall be taken therein by Your Honours And that your Orator by Decree of this Honourable Court may be Fully relieved in the Premise According as to your Honours in Your Wisdom shall seem meet, agreeable to Equity and good Conscience. And Your Orator as in Duty bound Shall Ever pray etc.