To the Honourable Charles Craven Esq. Governor etca and to the Rest of the Honourable the Lords proprietors Deputies now Sitting in Chancery.
Humbly Complaining Sheweth unto your Honours Your Orator John Moore of [blank] in Berkly County in the Province afforesaid Gentleman that on or about December, One Thousand Seven hundred and fourteen, then being peaceable times in this Province he your Orator did treat with Mr. Ben[137]*137jamin Goddin and Benjamin Dela Councelleire of Charlestown in this Province Merchants Concerning Some Pitch, that was to be made by your Orattor off of his plantation in this Province, at certaine rates and prices, these discoursed of bettween them; and if all matters had remained in the Same Condition in this Province, might have been for the mutuall benefitt and Advantage of each of them, and pursuant to Such discourse on or about the Thirteenth day of the Said Month December, Your Orattor did enter into a Contract Writeing or Agreements which were duely executed Reciprocally with the Said Benjamin Goddin and Benjamin Dela Councelleire to the Tenor or effectt following Vizt that your Orattor (amongst other things) Should make pitch off of his plantation affore Said by himselfe Slaves or Servants, before the Thirteenth Day of December, One Thousand Seven hundred and fiffteen, and Deliver unto the Said Goddin and Councelleire, the Quantity of Six hundred Barrells of pitch at certaine rates and prices on or before the said day. but in Such contract or Agreement, it was by way of provissoe consented to, by them the Said Goddin and Dela Councelleire, that your Orattor Should make four hundred Barrells of pitch off of his Said plantation, before he was to begin to make any for the Said Contractors, And your Orattor further Sheweth unto your Honours that by Such time as he had, Burnt, made and finished such four hundred Barrells Afforementioned it pleased god to Vissitt this Province with an unhappy Warr with the Infidell Indians, wherein an Abundance of the Inhabitants, theire Slaves and Servants hire were Cutt off, and Driven from theire plantations, and Amongst the rest, your Orator was Driven from his . plantation, And his Slaves and Servants forced into the Warr which, broak out the aprill Following, therefore in noe Capacity to performe Such Contract Soe entered into To the said Mr. Benjamin Goddin, and Councelleire; by reason Your Orator nor his Servants dare not for fear of theire lives goe to and stay at his Said plantation, to burn and gett in Such pitch to enable him to per-forme the Contractt afforementioned, And your Orator further Sheweth unto Your Honours that Since the times of Such Contract, and performance, the said Comoditie are vastly Risen in theire price, in the marketts of this province, the Inhabitants not being Capable of makeing such quantities as they Expected, and also all European Commodities are Risen like wise in proportion, and should your Orattor be Compelled to performe the Strictness of such his Contract or Agreement he must be a verry, great Sufferer, to the vallue of severall hundreds of pounds, which would be Contrary, to Equity and good Conscience and tend to your Orators Ruine, because it was the hand of god that prevented his performance of Such Agreement which could not be prevented by noe meanes of him your Orattor, and Therefore as he is advised he is not Oblidged to performe the Same, Since noe Deffaultt in him. and your Orattor further Sheweth, unto your Honours, that the said Benjamin Goddin and Benjamin Councelleire not haveing any Regard to the great Calamities of the Warr, or the Necessities your Orattor has been driven unto by reason [138]*138thereofe have caused your Orattor to be Arressted on the Said Contract or Agreement and oblidged him to give Speciall bailie in the Court of Common pleas, to an action on the said Contract by them brought Altho they well know in theire Conscience as your Orator hopes it will appear to this Honourable Court, that they the said Goddin and Councelleire, never gave unto him one penny in Consideration, that he Should enter into Such Contract, but it was a Naked agreement made between them, for the Beneffitt of each other, had the Province remained in the Same Condition, as at the time of the Said Contract made untill the time of performance of the Same, But now Soe it is, may it please your Honours that they the said Benjamin Goddin and Benjamin Councelleire, dessigne to recover at the Common Law the full Vallue of the Said pitch, and your Orator haveing noe remedy by the Strict rules of the Common law, to defende himselfe against the unequitable and unconsionsable doeings and Transactions of the Said Benjamin Goddin and Benjamin De la Councelleire but in a Court of Equity, before your Honours for that your Orator has not a Counterpart of the said Contract and the Wittnesses who could prove all and Singular the premesses, are either dead or gone into places Remote, and beyond the Seas, the Testimoney of whome your Orator is noe way able to obtaine, Therefore he is wholly Releiveable in a Court of Equity before Your Honours In tender Consideration of the premissees, and that Your Orator may be Releived in Equity, and that the said Benjamin Goddin and Benjamin Councelliere may on theire Corporall oaths,, Sett forth and Discover, Whether on or about the time aforementioned Your Orattor did not treat with, and enter into such Contract or Agreement affore Sett forth or to the purport afforesaid, or to what other intent or purpose, for Six hundred Bar-rells of Pitch, or any other, and what quantity, Whether on or About the time affore Set forth, or any other and what time, With the full Contents of Such Contract or Writting, at what price he was to deliver the Same Whether he your Orator, was not by Such Contract to have the Libertie of Burning or makeing of, off the said Plantation, four hundred Barrells of pitch before he was oblidged to goe about Burning or makeing any pitch for them the Said Contractors, Whether there did not a warr arise in the province, by the Incursion of the Indians, into Severall parts thereof whereby many of the Inhabitants were Cutt off, and driven from theire plantations, Whether they doe not know, have heard, or belive, that your Orator, with Slaves and Servants, were not driven from this plantation, and Severall of his Slaves and Servants forced into the Warr, and thereby he was Totally made Incapable of performing the Contract afforementioned, through fear of his and theire lives as affore Set forth, And whether the Warr did not break out on or about the time before mentioned and whether the prices of the Said pitch is not greatly risen through Occasson of said Warr, and what price the said Commoditie now bears, And why they insist on the Exact performance of Such Contract, Since your Orator was made uncapable by the hand of god, to performe the Same, [139]
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To the Honourable Charles Craven Esq. Governor etca and to the Rest of the Honourable the Lords proprietors Deputies now Sitting in Chancery.
Humbly Complaining Sheweth unto your Honours Your Orator John Moore of [blank] in Berkly County in the Province afforesaid Gentleman that on or about December, One Thousand Seven hundred and fourteen, then being peaceable times in this Province he your Orator did treat with Mr. Ben[137]*137jamin Goddin and Benjamin Dela Councelleire of Charlestown in this Province Merchants Concerning Some Pitch, that was to be made by your Orattor off of his plantation in this Province, at certaine rates and prices, these discoursed of bettween them; and if all matters had remained in the Same Condition in this Province, might have been for the mutuall benefitt and Advantage of each of them, and pursuant to Such discourse on or about the Thirteenth day of the Said Month December, Your Orattor did enter into a Contract Writeing or Agreements which were duely executed Reciprocally with the Said Benjamin Goddin and Benjamin Dela Councelleire to the Tenor or effectt following Vizt that your Orattor (amongst other things) Should make pitch off of his plantation affore Said by himselfe Slaves or Servants, before the Thirteenth Day of December, One Thousand Seven hundred and fiffteen, and Deliver unto the Said Goddin and Councelleire, the Quantity of Six hundred Barrells of pitch at certaine rates and prices on or before the said day. but in Such contract or Agreement, it was by way of provissoe consented to, by them the Said Goddin and Dela Councelleire, that your Orattor Should make four hundred Barrells of pitch off of his Said plantation, before he was to begin to make any for the Said Contractors, And your Orattor further Sheweth unto your Honours that by Such time as he had, Burnt, made and finished such four hundred Barrells Afforementioned it pleased god to Vissitt this Province with an unhappy Warr with the Infidell Indians, wherein an Abundance of the Inhabitants, theire Slaves and Servants hire were Cutt off, and Driven from theire plantations, and Amongst the rest, your Orator was Driven from his . plantation, And his Slaves and Servants forced into the Warr which, broak out the aprill Following, therefore in noe Capacity to performe Such Contract Soe entered into To the said Mr. Benjamin Goddin, and Councelleire; by reason Your Orator nor his Servants dare not for fear of theire lives goe to and stay at his Said plantation, to burn and gett in Such pitch to enable him to per-forme the Contractt afforementioned, And your Orator further Sheweth unto Your Honours that Since the times of Such Contract, and performance, the said Comoditie are vastly Risen in theire price, in the marketts of this province, the Inhabitants not being Capable of makeing such quantities as they Expected, and also all European Commodities are Risen like wise in proportion, and should your Orattor be Compelled to performe the Strictness of such his Contract or Agreement he must be a verry, great Sufferer, to the vallue of severall hundreds of pounds, which would be Contrary, to Equity and good Conscience and tend to your Orators Ruine, because it was the hand of god that prevented his performance of Such Agreement which could not be prevented by noe meanes of him your Orattor, and Therefore as he is advised he is not Oblidged to performe the Same, Since noe Deffaultt in him. and your Orattor further Sheweth, unto your Honours, that the said Benjamin Goddin and Benjamin Councelleire not haveing any Regard to the great Calamities of the Warr, or the Necessities your Orattor has been driven unto by reason [138]*138thereofe have caused your Orattor to be Arressted on the Said Contract or Agreement and oblidged him to give Speciall bailie in the Court of Common pleas, to an action on the said Contract by them brought Altho they well know in theire Conscience as your Orator hopes it will appear to this Honourable Court, that they the said Goddin and Councelleire, never gave unto him one penny in Consideration, that he Should enter into Such Contract, but it was a Naked agreement made between them, for the Beneffitt of each other, had the Province remained in the Same Condition, as at the time of the Said Contract made untill the time of performance of the Same, But now Soe it is, may it please your Honours that they the said Benjamin Goddin and Benjamin Councelleire, dessigne to recover at the Common Law the full Vallue of the Said pitch, and your Orator haveing noe remedy by the Strict rules of the Common law, to defende himselfe against the unequitable and unconsionsable doeings and Transactions of the Said Benjamin Goddin and Benjamin De la Councelleire but in a Court of Equity, before your Honours for that your Orator has not a Counterpart of the said Contract and the Wittnesses who could prove all and Singular the premesses, are either dead or gone into places Remote, and beyond the Seas, the Testimoney of whome your Orator is noe way able to obtaine, Therefore he is wholly Releiveable in a Court of Equity before Your Honours In tender Consideration of the premissees, and that Your Orator may be Releived in Equity, and that the said Benjamin Goddin and Benjamin Councelliere may on theire Corporall oaths,, Sett forth and Discover, Whether on or about the time aforementioned Your Orattor did not treat with, and enter into such Contract or Agreement affore Sett forth or to the purport afforesaid, or to what other intent or purpose, for Six hundred Bar-rells of Pitch, or any other, and what quantity, Whether on or About the time affore Set forth, or any other and what time, With the full Contents of Such Contract or Writting, at what price he was to deliver the Same Whether he your Orator, was not by Such Contract to have the Libertie of Burning or makeing of, off the said Plantation, four hundred Barrells of pitch before he was oblidged to goe about Burning or makeing any pitch for them the Said Contractors, Whether there did not a warr arise in the province, by the Incursion of the Indians, into Severall parts thereof whereby many of the Inhabitants were Cutt off, and driven from theire plantations, Whether they doe not know, have heard, or belive, that your Orator, with Slaves and Servants, were not driven from this plantation, and Severall of his Slaves and Servants forced into the Warr, and thereby he was Totally made Incapable of performing the Contract afforementioned, through fear of his and theire lives as affore Set forth, And whether the Warr did not break out on or about the time before mentioned and whether the prices of the Said pitch is not greatly risen through Occasson of said Warr, and what price the said Commoditie now bears, And why they insist on the Exact performance of Such Contract, Since your Orator was made uncapable by the hand of god, to performe the Same, [139]*139and had noe consideration for soe doeing And why they Caused your Orator upon Such Contract, to be arrested Whither they the said Benjamin Goddin and Councelleire, gave or paid to your Orator any Sum or Sums of money To Oblidge him to enter into Such Contract, if soe, how much, and by whome paid, Whither by the Said Contract your Orator was to receive any money from them or either of them by Vertue of the Same, before delivery of the Said pitch, and that Since your Orattor has Delivered noe pitch, nor they the said Deffendants have paid any money on Account thereof, where in they can be damadged, May it therefore please Your Honours to grant unto your Orator Your gracious Writt of Subpena to them the said Benjamin Goddin, and Benjamin De la Councelleire directed Requiring and Commanding them and each of them, personally to be and appear at a Certaine day, and under a Certaine pain, therein to be limited, to answer to all and Singular of the premisses Afforesettforth, and also your gracious writt of Injunction, to be directed to them the said Benjamin Goddin and Benjamin Councelleire, theire Coun-cillers, Agents, Sollicitors, and Attorneys, Requiring them, each and every of them, to Stop and Surcease, all proceedings at law on the premissees, untill the hearing of this cause before your Honours and that the said Benjamin Goddin and Benjamin Councellire may stand to and abide, to Such Judgment order or Decree, for releife of your Orator, in the premissees as Shall be agreeable to Equity and good Conscience And he Shall ever pray etca.
Alex Fornenbergh pro Quer.