Holmes v. Schenckingh

6 Rec. Co. Ch. (S.C.) 95

• Court: Court of Chancery of South Carolina
• Decided: February 12, 1713
• Status: Published

Opinion

The Most Noble Prince Henry Duke of Beaufort, Palatine, and the rest of the true and absolute Lords and Proprietors of the Province of Carolina, To Edward Holmes, Marriner, and To all Judges, Justices, Counsellors, At-tornys. Sollicitors in our Said Province and to either of them, Greeting, etca.

Whereas for Certain reasons and Causes shewn to us, on the part and behalfe of Benjamin Schenckingh, Executor etca of John Berringer ³² deceased, it hath been praied that Our Writt of Injunction might Issue out of our Said Court, against the Said Edward Holmes for the Staying of process at the Common Law against the Said Benjamin Schenckingh, upon a Certain obligation for the payment of the Sum of two hundred seventy six pounds Current mony entered into by the Said testator John Berringer untill the Cause be heard in our said Court of Chancery— Wee therefore for Good Causes and Considerations do Command and firmly Injoyn you the Said Edward Holmes, and All Judges, Justices Counsellors Attornys and Sollicitors aforesaid and either of you under the Penalty of two hundred pounds Current mony to be levied of your and Either of your Lands, Tenements goods and Chattels to our use that you Cease and desist, and that you and either of you do altogether Cease and desist from all further prosecution whatsoever at the Common Law, against the aforesaid Benjamin Schenckingh, for upon or by reason of the obligation aforesaid, untill the matter aforesaid be fully heard and determined in our Said Court, or untill it shall be otherwise ordained In this be-halfe, And this you nor either of you are to omit, by any means.

[Filed July the 20th 1712]

Witness the Honourable Charles Craven Esq. Our Governour etca this twelfth day of February Anno Domini 1712/13. Charles Craven

Benjamin Schinking Gentleman Executor of the Last Will and Testament of John Berringer late of this Province Gentleman deceased was attached to answer Edward Holmes Gentleman of a Plea that he render unto him two hundred and Seaventy Six pounds Current Money of the Island of Providence which from him he unjustly detaines etca and whereupon the Said Edward by George Evans his Attorney Says that whereas the aforesaid John Berringer in his lifetime the Twenty Sixth day of december Anno Dom 1702 at the Island of Providence in the Bahamas (Viz) at Charles Town in this Province and within the Jurisdiction of this Court by his certain writeing Obligatory did Acknowledge himselfe to be bound to him the Said Edward in the aforesaid Sume of two hundred Seaventy Six pounds to be paid to him the Said Edward when he Should be thereunto requested yet the aforesaid John in his life time and the Aforesaid Benjamin after the death of the said John altho often requested the aforesaid two hundred Seaventy and Six pounds to him the Said Edward hath not paid but the Same to him to pay hath denyed And the aforesaid Benjamin the Same to him the Said Edward as yet to pay doth deny and unjustly detaine whereupon he Saith that he is damnifyed Twenty pounds Current Money and thereupon he brings his Suit and brings here into Court the writeing Obligatory aforesaid with the debt aforesaid in form aforesaid doth Testify whose date is the day and year aforesaid. Evans pro Plaintiff

[Attached is copy of note from John Berringer to Capt. Edward Holmes, December 26, 1702, in the presence of Tho: Gower, John Strode, Jorum Wells.]

[South Carolina filed July the twenty second X7X2]

His Excellency William Lord Craven Pallatine and the Rest of the true and absolute Lords and Proprietors of the Said Province to the Marshall of the Courte of Common Pleas, Send Greeting Wee Streightly Command you without any Delay to Attach the Goods and Chatties of Benjamen Schenking Executor of the Last Will and Testament of John Berringer Late of this Province Gentleman Deceased

Soe as to Compelí him personally to be and appear before our Chiefe Justice at our Next Court of Common Pleas tó be holden for the Said Province at Charlestown to Answer the Complaint of Edward Holmes Gentleman in a Plea of Debt for Two hundred Seaventy and Six pounds Current Money.

Witness Nicholas Trott Esq. our Chiefe Justice at Charlestown the Sixteenth day of July Anno Dom 1712. Nicholas Trott C.J.

[Also a warrant to the Marshall of the Court of Common Pleas to “Attach the body of Benjamen Schenckingh” Witnessed by Nicholas Trott, signature to warrant and part of date missing.]

[Endorsed] Edward Holmes agt Benja. Schenckingh Executor £276 Att February Court of 1712/13 Stopped by an Injunction No 936 Evans 1712. Cepy Corpus this Twenty first day of July 1712 per Joseph Holbeatch Marshall

32 John Berringer in 1701 received a grant for 1800 acres in St. James Goose Creek Parish, which later became the famed Crowfield Plantation of the Middletons. A captain in Moore’s expedition against the Appalachian Indians in 1704, he was killed, fighting bravely (SCHGM, XV, 64).