Hart v. Gerish

6 Rec. Co. Ch. (S.C.) 89

• Court: Court of Chancery of South Carolina
• Decided: February 18, 1713
• Status: Published

Opinion

To the right honourable Charles Craven ³⁰ Esq. Governor of South Carolina and to the true and Absolute Lords Proprietors deputies Siting in a Court of Chancery.

Humbly Complaining Sheweth unto your honours your Orators Charles Hart Esq. Daniel Greene and John Bee of Charles Towne in the County of Berkly Merchants That one Francis Scampton of Charles Towne aforesaid Merchant lately deceased by his last will and Testament bearing date the third day of September last in this present yeare of our Lord One thousand seaven hundred and Twelve made Proclaimed Constituted and appointed your Orators Executors of his last will and Testament as by the said Will duly approved and Recorded in the Secretaries Office of this Province relation being thereunto had may fully and at large appeare and your Orators further humbly Sheweth that the said Francis Scampton long before and at the time of his death carried on a very great and Extraordinary affaires of Merchandizing and other trading and dealings abroad beyond the Seas to the port of London and severall other Ports and places of Trade in the Kingdom of great Britain and to severaall other parts beyond the seas and to the Island of Barbados and Jamaica and else where And had and received and sent abroad diverse and sundry effects of all Sorts of Merchandizes and other effects and had Consigned to him and his Order and Assignes not only bills of ladings and Invoices of all sorts of goods but also severall Ships and whole Cargoes and bills of returne Invoices and otherwise which trade and business he carried on to the time of his death having great Creditt abroad by reason thereof so that he the Said Francis Scampton having contracted many and Considerable debts and Cred-itts which your Orators are altogeather unable to Answer and pay unless your Orators can maintain and support by Trade and Creditt. And also have and receive the Cargoes goods and Effects Consigned to him by his Factors Creditors and Agents from abroad which were Consigned and remitted to him by persons remote and else where, that were and still are unacquainted with his death and are now remitted and Consigned to him from abroad and come to and for him by the severall ships and vessells lately arrived in these parts. But now so it may please your honours one Paul Gerish marriner Master of the Lake Frigat The Defendant to this your Orators bill of Complaint Combining and Confederating to and with diverse other persons whose names are utterly unknown to your Orator who when discovered your Orators humbly pray may be incerted in this your Orators bill with apt and propper words to charge them do utterly conseale from your Orators the goods and Effects ships and ships Cargoes consigned to the said Francis Scampton which of right your Orator ought to have and receive as being his Executors and also representatives in his trade and business since his decease, but your Orators further humbly sheweth unto your honours that he the said Paul Gerish taking advantage by the death of the said Francis Scampton doth totally conseale from your Orators the goods Imported in the said Lake Frigat togeather with the Invoices and bills of Ladings relating to the goods Consigned to the said Francis Scampton as your Orators have good reason to thinke and refuse to deliver to your Orators such letters of advise Invoices goods and Effects or any part thereof consigned and sent to the said Francis Scampton or any Remittances or advise by way of Letter or otherwise concerneing his Agency and Factorage Corresponding with him in the Island of Barbados or to give or render your Orators any manner of account thereof altho Often requested so to do and particularly the Cargoes good and Effects Consigned to the said Francis Scampton by one George Newport and Others sent as your Orators have good reason to suspect from the said Island of Barbados by and in the said Lake Frigat and to and from the said Island or the port of London or some other port or place unknown to your Orators by the said George Newport and sev-erall other Persons altho he the said Paul Gerish and the rest of the Confederates well know that the whole ships Cargoe or the greatest part thereof was remitted with diverse and sundry bills of Lading Invoices letters and other bills of remittances which were all directed and Ordered to be delivered to the said Francis Scampton or his Assigns Or to Some other perticular person unknowne to your Orators in case of his death and mortallity. The said Paul Gerish uppon the demand of your Orators sometimes pretending that in case of the death of the said Francis Scampton the said goods and Effects Ship and Cargo was or the greatest part thereof Consigned to the said Paul Gerish and some part or the greatest part he has already sold and disposed of or Contracted to sell and will dispose thereof and pretends that he has letters and other directions or Authorities so to do. but does utterly refuse to discover or permitt your Orators to see the same but has only shewed the directions thereof which was not wrote with the same hand and Character as the rest of the said letters was nor is the bills of lading and Consignment thereof of the true date, but the date and Contents and purport thereof and of the said letters is entirely or great part thereof as your Orators have good reason to suspect altered and antidated or the reall Invoices and Consignements are concealed distroyed and burnt or otherwise kept secrett and reserved from your Orators knowledge and Inspection. And your Orators further humbly sheweth that the said Paul Gerish hath Often Owned that the whole ship or Cargo was Consigned to the said Francis Scampton or Some or the greatest part of the said goods of Merchandize in the said vessel in case he the said Francis Scampton were alive at the arrivall of the said Vessel but that since the said Francis Scampton was dead he would keepe and dispose thereof himselfe and would not deliver the same nor any parte thereof to your Orators since he had the possession thereof nor render any manner of account Whatsoever but dispose of the same as his owne proper goods Or words to the like Effect And the better to Colour such pre-tences pretended the letters bills of lading and Invoices which were shewed and produced to your Orators by the said Paul Gerish were so directed and Ordered by the persons to whom those goods did belong but your Orators highly suspecting the same to be altered in the said date directions and Contents thereof and the bills of Lading not true and reall bills but altered and Antidated or wrote since his the said Paul Gerishes arrivall in this Port whereby severall goods were pretended to be Consigned to the said Francis Scampton your Orators Testator as is before set forth but in case of his death and mortallity to the said Paul Gerish which said papers upon a dispute between your Orators and the said Defendants were by Consent delivered into the hands and Custody of George Evans Esq. in Order as was pretended by the said defendants to give your Orators further satisfaction into the affaires of the said Francis Scampton but the said Paul Gerish Contrary to his word and promise most unfairely and dishonestly has since withdrawne the said bills of lading letters Invoices and other bills so depossited without your Orators knowlede or consent from the said George Evans or his servants in his absence and without his privity and also your Orators having urged him the said Paul Gerish to be sworne to the truth and reality of such pretended letters bills of lading and Invoices which he the said Paul Gerish utterly refused to do. And now since he has repossessed himselfe thereof denies to render any manner of account to your Orators of any Effects or Consignments Whatsoever and utterly refuse to show or deliver the said letters bills of Lading or any of them but has burnt distroyed defaced the same or delivered the same to be so burnt or distroyed or caused the same to be distroyed or concealed from your said Orators and is going on to sell and dispose o£ the whole ships Cargo and the goods and Effects thereof which of right belong to your said Orators contrary to all manner of right Equity and good Conscience And not only to your Orators manifest wrong and Injurys but also to the great prejudice of the Creditors of the said deceased Francis Scampton and the whole affaires of the said Francis Scampton In tender Consideration whereof and in regard that your Orators Witnesses on the whole transactions being remoate and beyond the Seas or Unknowne to your Orators so that your Orators cannot maintaine any action by the strict rules of the Comon Law but are altogeather remeadiless thereby unless releived in a Court of Equity where matters of Fraud and Collusion and transactions of this Nature are only releaveable and redressed. In regard thereof and that the said Paul Gerish and the rest of the Confederates may on their Corporall Oathes true Answer make to all and singular the premisses and every part thereof as if againe repeated and Interrogated and particularly that he the said Paul Gerish may set forth what goods were Consigned to the said Francis Scampton and every Item and particular thereof and what bill or bills of Lading Invoices letters togeather with the true Contents and dates thereof and the reall directions of such letters and bills of Lading without any manner of addition or alteration verbatim as delivered into his hands or Custody and by whom so sent or Consigned togeather with the reall vallue thereof and where and from what part Port or place and where the persons now live and reside that sent Consigned or delivered the same to him his Agents or servants Ship or Frigat and to whom by name and how and which way he came by the same and if such bills letters Invoices and other Instruments or Instructions are not since altered and who altered directed anti-dated the same and why and what reason they were so Antidated or directed or new bills of lading made altered or an Aditional directions made thereto and by whom and uppon what account or how otherwise and where the goods and Effects now are or in whose hands they now remaine or where or how disposed of what are the Contents and of what nature or kind the same are or why or for what reason he has sold or diposed thereof And also may be compelled by the Order and directions of this honourable Court to deliver up to your Orators all letters Invoices and other bills of lading of what Nature soever as the said Paul Gerish shall discover to be in his possession power or knowledge and produce the same before your honours that in any wise relate to the affaires and Transactions of the said Francis Scampton and all other persons Corresponding with him. And that he the said Paul Gerish and the rest of the Confederates when discovered may true Answer make to all and singular the premisses and that your Orators the writt or writts of [missing] issuing out of this honourable Court directed [missing] 1 Gerish and the [missing] Confederates when discovered commanding him and them and every of them under a certaine paine and at a certaine day therein to be lymitted and appointed personally to be and appeare before your honours in this honorable Court then and there to Answer all and Singular the premisses and further to Stand to and abide such further Order and decree therein as to your honours shall seeme meete and most agreeable to Equity and good Conscience. And your Orators as in duty bound Shall ever pray etca.

[Filed February 18, 1712/13]. Geo Rodd ³¹ pro Quer

The Answer of Paul Gerish Master and Marriner Defendant to.the Bill of Complaint of Charles Hart Esq. Daniel Green and John Bee Merchants Complainants

The said Defendant Saving and Reserving to himself now and at all times hereafter all and all manner of advantage of Exception to the Manifold incer-taintyes insufficiencyes and Untruths in the Complainants Said Bill of Complaint contained For Answer thereunto or unto So much thereof as he this Defendant is advised is Materiall in the Law for him this Defendant to make answer unto He this defendant Answereth and Saith that he knowes not but believes it may be true that Francis Scampton in the Bill mentioned to be lately [torn]-d might by his last Will and Testament bearing date and recorded as in the Bill is Sett forth constitute and appoint [torn]-xrs of his last will and testament And aliso this Defendant believes it may be true That the said Francis Scampton Some [torn] and at the time of his death might carry on great and extraordinary affairs of Merchandize to Severall Parts of [torn] soritam and other parts beyond the seas and to the Islands of Barbados and Jamaica and elsewhere and the said Francis Scampton sent abroad diverse and Sundry Effects and Merchandize And had consigned to himself Severall Bills of Lading and Invoices as in the Bill is asserted But whether Such Bills of Lading and Invoices and Effects were consigned to the said Francis Scampton his Order or Assigns this Defendant knowes not Neither does this Defendant Believe that the said Francis Scampton had contracted many considerable Debts which the Complainants pretend they are Unable to pay unless they can carry on and Support by trade and Creditt as in the Bill is Suggested But this Defendant believes the said Francis Scampton dyed in very Good Circumstances and left Sufficient to answer All the Demands of his Correspondents. And this Defendant further Saith that about the Month of October last he being Master of the Lake Frigott as in the Bill is sett forth then Riding in Carlisle bay in the Island of Barbados Did receave and being bound for the Port of South Carolina did receive and take on board One trunk of Merchandize on the Proper account and Risque of Mr. Richard Moyne of London Merchant in which were contained Sundry Sorts of Haberdashery wares and Merchandize pursuant to a Bill of Lading and Invoice hereunto Annexed which Bill of Loading and Invoice this Defendant prayes may be received as part of this Defendants Answer to the Complainants Bill of Complaint And this Defendant further Saith that he did likewise during the time the said Ship or Vessell called the Lake Frigott continued in the Said bay receive and take on board the said Frigott one Negro Woman by Name Nancy on the account and risque of one Mary Londe pursuant to a bill of Loading hereunto Annexed And a Letter from the said Mr. George Newport in the Bill mentioned Directed to Mr. Francis Scampton Merchant Or in his absence to Capt. Paul Gerrish Commander of the Lake Frigott in Carolina which said last mentioned Bill of Loading and letter this Defendant humbly prayes may be likewise received as part of this Defendants Answer And this Defendant further Saith That the said two Bills of Lading hereunto Annexed The said Invoice and Letter of the said Mr. George Newport And the Direction of the said Letter are true and Genuine and retain the same Consignment directions and Dates as when they were delivered to this Defendant And that Neither this Defendant himself Nor any other person or persons to this Defendants knowledge or by this Defendants advice privity assent consent direction or procurement have any wayes altered antidated defaced or any other way disguised the true purport and Contents thereof And this Defendant likewise Denyes that he received on board the said Lake Frigatt any other Goods or Effects Wares or Merchandize whatsoever consigned to the said Francis Scampton or his Assigns save one Negro Woman by Name Betty which Negro Woman being consigned solely to the said Scampton or his Assigns This Defendant looked upon himselfe obliged to Deliver to the Executors of the said Scampton which he has done accordingly and says that [torn] Greens receipt for the Same which he is ready to Produce to this Honourable Court And this Defendant further [torn] it is. He this Defendant att the request of the Complainants or Some of them and their Attorney Major Evans He [torn] gave the Bills of Loading and Invoice and Letter in the Custody of the said Major Evans for the Complainants perusal where they Remained for the space of one Night and this Defendant calling at the said Majors Office the next morning (the said Major Evans not being within) one of the clerks in the. office asked this Defendant if he wanted his papers telling him at the Same time he might have them or words to the like Effect whereupon This Defendant took his papers again Supposing the Complainants might have Satisfied themselves by the Perusall of them And this Defendant further Saith that he offered to be Examined upon Oath with Relation to the said Papers and Concern of the said Francis Scampton. And this Defendant further Saith Neither he himself or any other person to his knowledge or by his direction Privity or Consent has burnt defaced or Destroyed any Bills of Loading Invoices Letters or Papers relating to the said Scampton or any Goods or Merchandizes consigned to him. Neither Does this Defendant know of or Ever heard of any other then what is before sett forth or annexed to this Defendants Answer except a Letter which this Defendant received from Mr. Joshua Birch of Barbados which is likewise annexed to this Defendants Answer And this Defendant Confesses That He has Disposed off the said Trunck of Haberdashery Wares and the Said Negro Woman Nancy As this Defendant humbly conceives was Lawfull for him to Do The said Trunk of Haberdashery Wares [illegible] Woman being in the absence of the said Francis Scampton consigned to this Defendant And this Defendant humbly [torn] give the Complainants any account to whom he has Disposed off the said Haberdashery [torn] ferrs himself to the Bills of Loading Invoices and Papers hereunto Annexed in answer to [torn] requiring this Defendant to discover from whom he received the Same And saith that he [torn] Lading or other Bills of Loading Invoices letters Neither Does [torn] Neither does This Defendant know or believe that any Such Bills of Loading.Invoices Letters or Directions of [illegible] have been Altered antidated directed or any additional directions made, Nor of the Concealing any other Bills of Loading Invoices or Letters relating to the said Francis Scampton or of any of the said Francis Scamptons Correspondents of the Defacing or Destroying them As in the Bill is most unfairly unjustly and unkindly Charged And this Defendant Denyes All and all manner of Combinations and Confederacy Without that that any other Matter or thing in the Complainants said Bill of Complaint contained materiall or Effectuall in the Law for him the Defendant to make Answer unto And not herein or hereby well and Sufficiently Answered Confessed or Avoided traversed or Denyed is

true. ...

A, Robinson [torn]

[torn] to before me Charles Craven

30 Charles Craven, brother of Lord Craven, Palatine of Carolina, was secretary of the province 1710-1711, and governor 1712-1716. The highest type of Englishman, he is remembered as an efficient administrator and a beloved and heroic military leader in a time of mortal peril. Reappointed as governor in 1736, he did not serve, and died in England in 1734.