Smith v. Beresford

6 Rec. Co. Ch. (S.C.) 260

• Court: Court of Chancery of South Carolina
• Decided: August 15, 1720
• Status: Published

Opinion

To the Honourable William Dry ⁷⁴ Esq. Chancellor (pro hac Vice) of the Settlement of South Carolina.

Humbly Complaining Sheweth unto Your Honour your Orator Land-grave Thomas Smith ⁷⁵ That your Orator Sometime in the Month of October In the Yeare of Our Lord One Thousand Seven hundred and Eighteen purchased of Richard Beresford Esq. Chancellor of this Settlement Twenty Eight Negroe Slaves for Twenty Three hundred and Sixty Barrells of Tarr And for the payment of the said Quantity of Tarr by a Certain Obligation bearing date the Eighth day of October in the yeare aforesaid became bound unto the said Richard Beresford and Richard Splatt Merchant in the penal Sume of Five Thousand pounds Current Money of South Carolina Under the Condition Following (vizt) Whereas the abovesaid Richard Beresford and Richard Splatt have sold and Delivered unto the above bounden Thomas Smith Twenty Eight Negroes upon this Consideration that the said Thomas Smith his heirs Executors and Administrators Should pay and deliver unto the said Richard Beresford and Richard Splatt their Executors Administrators or assignes Twenty three hundred and Sixty Barrells of Merchantable Tarr at the said Smith Landing on Back River good and Merchantable Comoditye for the purchase of the said Negroes Now the Condition of this Obligation is Such That if the above bounden Thomas Smith his heirs Executors Administrators Shall and will truely pay and Deliver or Cause to be paid and Delivered unto the said Richard Beresford and Richard Splatt their Executors Administrators or assignes at the said Landing (to Witt) Six hundred Barrells of Tarr by the last of May Next Ensueing the above date the other Seventeen hundred and Sixty Barrells to be Delivered by the Eighth of October In the Year One Thousand Seven hundred and Nineteen In good and Merchantable Commoditie by Two or Three Merchants Indifferently Chosen or appointed to View or Examine the said Commodity at or upon the days aforesaid with Interest or Forbearance of the same at the rate of Tenn pounds per Cent per Annu Specie to be Computed from the day of the date hereof unto the Said Eighth day of October being the day of the Delivery of the Same without Fraud or Further Delay then this Obligation to be void and of none Effect or else to be and remaine in full force and virtue And at the time of the Execution of the said Bond the Following agreement was Inserted (vizt). It is Mutually Agreed between the parties above mentioned that they are to receive the Said Tarr that no Interest is to be paid before the whole year be expired As Witness Our hands the day and Year above Written As by the said Condition and agreement when produced will appear And Your Orator further Sheweth unto Your Honour That in Order to the performance of the aforesaid Condition and for the true payment and Satisfaction of them the Said Richard Beresford and Richard Splatt the Debt aforesaid Your Orator on or about the Twenty Nienth Day of June One thousand Seven hundred and nineteen Delivered at his Landing on Back River unto the said Richard Beresford and Richard Splatt or their Order Three hundred and Fifty One Barrells of Tarr in part of the Quantity aforesaid And afterwards (To Witt) Sometime in the Month of November following He also Delivered to them the Said Richard Beresford and Richard Splatt Two hundred and Forty Barrells of pitch which they received and Accepted in Lieu of Four Hundred Barrells of Tarr And again in the Month of February Three hundred and Sixteen Barrells of Tarr And in the Month of May last One hundred and One Barrells of Tarr which In the Whole Amounts to One thousand One hundred and Sixty Eight Barrells of Tarr Which they the said Richard Beresford and Richard Splatt received in part of the said Two thousand three hundred and Sixty Barrells of Tarr Mentioned in the Condition of the aforesaid Obligation Which your Orator Delivered at the Request of them the said Richard Beresford or Richard Splatt As will plainly Appear to this' Honourable Court by the Receipts of the persons Imployed by the said Richard Beresford and Richard Splatt when produced And Your Orator paid to Captain Eades Ninteen pounds and tenn Shillings for Carrying One hundred and Fifty Six barrells of Tarr From his Landing aforesaid to the Said Richard Beresford and Richard Splatt in Charles Town Which your Orator Conceives and hopes will be deducted out of his Said Bond as Soe much paid. And Your Orator had Satisfyed'them the said Richard Beresford and Richard Splatt the Residue of the said Quantity Of Tarr Long before the Expiration of the time Limitted in the Bond for the payment thereof If they the said Richard Beresford and Richard Splatt had not refused to Fetch it from the Landing aforesaid at the time when Notice was given And the Same tendered to them According to the Condition of the aforesaid Obligation if they had not Insisted that the Tarr to be Delivered should be brought to Charles Town and there Landed and packed before they the said Richard Beresford and Richard Splatt would be Chargeable with the Receipt thereof which often Obliged Your Orator (after his Tarr had laid a Considerable time in expectation of perraugers) to be Sent by them the said Richard Beresford and Richard Splatt And great Quantity es of it Leaked out) T o boil the Same into pitch And dispose of it to his very great Damage disappointment Loss and disadvantage particularly Some time about the Month of August in the year of Our Lord One thousand Seven hundred and Nineteen Your Orator had near Five hundred Barrells of Tarr Lyeing at the Landing aforesaid Whereof Your Orator gave Notice To the said Richard Beresford and Richard Splatt but they refused to take the Same away pretending that there was no Vessel to Receive the Same aboard And would have had Your Orator built a House at his Landing And laid the said Tarr upon Skids And have kept it on your Orators Risque but your Orator was forced to boil the Same into pitch to prevent it being quite wasted And Some short time after Your Orator had another large Quantity of Tarr Laying at the Landing aforesaid whereof he gave Notice as aforesaid to the said Richard Beresford and Richard Splatt which they absolutely refused to Receive unless the Same was packed in Town And your Orator Further sheweth that About the Month of February last past your Orator had another Kill of Three or Four hundred Barrells of Tarr whereof they the said Richard Beresford and Richard Splatt had Notice which Your Orator was Forced to dispose of by reason of their Negligence in not Fetching the same away And your Orator particularly gave Notice to them the Said Richard Beresford and Richard Splatt of One hundred and Thirteen Barrells of Tarr which were ready at your Orators said Landing at the Same time and laid Four or Five Months (to Wit) till May last before they the said Richard Beresford and Richard Splatt Sent for the Same In which time Some part thereof leaked out And Your Orator was forced to New Hoop the Same Twice to prevent it from being quite wasted And the Said Richard Beresford and Richard Splatt did not only Neglect to Fetch the Same But when they had First Notice thereof (To witt) About the Month of February last past they absolutely refused to Send for the Same pretending that One hundred and Thirteen Barrells was not a Load Notwithstanding in the end they the said Richard Beresford and Richard Splatt Sent the Dutch Hoy to bring it to Towne Notwithstanding all which Great Losses and Disappointments Occasioned by the Non performance of the Agreement on the part and behalfe of the said Richard Beresford and Richard Splatt Your Orator daily was and now is Makeing Tarr and Endeav-ouring to discharge the aforesaid Bond and the Interest Due thereon from the Eighth day of October last past According to Agreement and well hoped that the said Richard Beresford and Richard Splatt would have been Satisfyed therewith (As in Conscience they Ought) But Now So it is May it please your Honour that the said Richard Beresford and Richard Splatt Conbineing and Confederateing themselves together to and with Severall other persons unknown to Your Orator (whose Names when discovered Your Orator prays may be Inserted and they be made parties to this Suite with apt Words to Charge them as Defendants) To Defeat and defraud your Orator And to Extort from Your Orator the Whole penalty of the aforesaid Bond Entered into by Your Orator as aforesaid And in Order thereunto they the said Richard Beresford and Richard Splatt Sometime before May Court last past Sued out process upon the Bond Entered Into to them by your Orator as aforesaid Issueing out of his Majesties Court of Common pleas at Charles Town And Caused your Orator to be Arrested thereupon, And put Your Orator to great Charge and Trouble in Finding Baile for so great a Sume as the penalty of the Bond so Entered into by your Orator as aforesaid Amounted to And have Since at August Court Obtained Judgement against Your Orator for the Penalty of the said Bond And are about to Sue Execution against Your Orator And to Levy the whole penalty of the said bond on Your Orators Goods and Chattells Although Your Orator before the Comencement of the said Action at Law offered to Make Any reasonable Satisfaction And that if they would Forbear Sometime Longer with him he would pay them Fifteen pounds per Cent Interest; Which your Orator thought in Conscience they were Obliged to Accept pursuant to the agreement made and Signed by the said Richard Beresford at the time of the Execution of the aforesaid Bond Which as Your Orator Conceives Implyed that he was to have Longer time For the payment of the Quantity of Tarr than in the Condition of the said Bond mentioned And Your Orator always Expected that he was to have Further time by Virtue of the said Agreement or had never entered into Such Bond And Your Orator at the Same time told them the said Richard Beresford and Richard Splatt that if they did not think that to be Suffitient Satisfaction Your Orator would referr the Matter to any Indifferent persons and make any Satisfaction that they should Award But the said Richard Beresford and Richard Splatt Most Unreasonably demanded of Your Orator That he Should pay Three pounds for every Barrell of Tarr that was behind and unpaid Or that Your Orator Should Imediately take up a Bond that the said Richard Splatt had Entered into unto Mr. Wragg For One hundred Ounces of Gold at Ten pounds per Cent Sterling Interest thereon and Two other Bonds which the said Richard Beresford had Entered into One to Mrs. Elizabeth Blake for Six hundred pounds The other to Mr. Ralph Izard For One hundred and Fifty pounds And if Your Orator would not Comply with their Demands Said they would use the utmost Extremity of the Law and told him that they would receive no more tarr but would have Money at the aforesaid rate of three pounds per Barrel All which Actings and doings of the said Richard Beresford and Richard Splatt and the Confedereties Are Contrary to all Equity and good Conscience And for as Much as Your Orators Witnesses who Could prove the Truth of the promisses are Dead or gone to parts remote and unknown to Your Orator And for that the Most Part of the Notices and Tenders Your Orator hath hereinbefore mentioned were made either by Letters or Communications that passed between Your Orator and the Said Richard Beresford and Richard Splatt And Your Orator haveing an Opinion of the Integrity of the said Richard Beresford and Richard Splatt Did not at all times Cause witnesses to be present At the Makeing Such Tenders and Giveing Such Notices as aforesaid by Reason whereof Your Orator was and is remed[i]less by the Strict Rules of the Common Law And only releivable by the Oaths of the said Richard Beresford and Richard Splatt in this Honourable Court Where Matters of this Nature are properly Cognizable and Determinable To the end therefore that the said Richard Beresford and Richard Splatt may upon their Corporall Oaths Sett forth and discover Whether Your Orator On or about the Twenty Ninth day of June One thousand Seven hundred and Nineteen at his Landing at Back River did not deliver unto them the said Richard Beresford and Richard Splatt or to some person by them or one of them Employed three hundred and fifty one Barrells of Tarr in part and after-wards Sometime in the Month of November following whether he did not also deliver to the said Richard Beresford and Richard Splatt Two hundred and Forty Barrells of Pitch in Lieu of Four hundred Barrells of Tarr And whether they did not receive and Accept the Same in Lieu thereof And whether Your Orator in the Month of February last did not deliver as aforesaid to them the said Richard Beresford and Richard Splatt Three hundred and Sixteen Bar-rells of Tarr and another parcell in May last of One hundred and one barrells Amounting in the Whole to One thousand One hundred and Sixty Eight Bar-rells And whether they the said Richard Beresford and Richard Splatt did not receive and Accept the Same in part of the said Two thousand three hundred and Sixty Barrells mentioned to be paid in the Condition of the aforesaid Obligation And that they the said Richard Beresford and Richard Splatt May Alsoe Setforth and discover whether they the said Richard Beresford and Richard Splatt or One of them did not refuse to Fetch from the aforesaid Landing at Back River Severall Quantities of Tarr'And what were the true Reasons For So doing And particularly in the Month of August One thousand Seven hundred and Nineteen whether Your Orator did not give Notice to them or One of them That he had near Five hundred Barrells of Tarr laying at the Landing aforesaid which he desired them to take away And whether at that time they did not refuse to take the Same pretending that there was no vessells to Receive the Same and whether that was the true Reason they refused the Same or what other Reason they had And whether they did not Demand that your Orator Should build a House and keep the Tarr at the said Landing on Skids at his Own Risque till they should send For it And whether Your Orator within a short time after did not give Notice to them or one of them that he had another large Quantity of Tarr at the said Landing for them the said Richard Beresford and Richard Splatt and whether they did not absolutely refuse to receive the Same unless repacked in Town And whether Your Orator in February last Did not give Notice to them the said Richard Beresford and Richard Splatt of Four hundred Barrells of Tarr And of another Quantity of One hundred and thirteen Barrells laying at the aforesaid Landing and whether they did not Neglect to take away the said parcel of Four hundred Barrells and whether The said Quantity of One hundred and thirteen Barrells [torn] lay the space o£ Four or Five Months before it was taken away and whether they or one of them did not pretend when they had First Notice of the Said One hundred and thirteen Barrells that the Same was not A Load And whether the Same was not afterwards brought to Charles Towne in the Dutch Hoy by their Order And Further that they the said Richard Beresford and Richard Splatt May Sett forth and discover whether they the Said Richard Beresford and Richard Splatt have not Sued your Orator at Common Law in Order to Extort the Whole penalty of the said Bond from Your Orator And whether they have not obtained a Judgement for the Same And that they may Sett forth Whether Your Orator before the Comencement of the said Action at Law Did not offer them the said Richard Beresford and Richard Splatt to make them any reasonable Satisfaction And if they would Forbear Sometime longer with him to pay them Fifteen pounds per Cent per Annu Interest And whether it was not the true Intent and meaning of the Said Agreement Signed by the said Richard Beresford That your Orator should have Longer time for the payment of the Said Tarr Then was limitted in the Condition of the said Obligation And whether Your Orator did not offer to reffer any Disputes or deferences that might arise to Indifferent persons if they did not think what he had Offered Suffitient And Whether they the said Richard Beresford and Richard Splatt did not refuse to make any manner of Composition Unless he would Imediately discharge the aforesaid three Bonds to Mr. Wragg Mr. Ralph Izard and Mrs. Elizabeth Blake And whether they did not threaten to use the extremity of the Law against him Unless he would pay three pounds per Barrel For every Barrel of Tarr that was behind and unpaid And why they have So violently and Maliciously prosecuted Your Orator And that it may be referred to the Master of this Honourable Court to Examine how much Tarr remains due and unpaid to the Said Richard Beresford and Richard Splatt on the Said Bond And that on Your Orators Satisfying and Dischargeing what Shall be reported to be due by Such Master That the Said Richard Beres-ford and Richard Splatt may be Compelled to deliver up and Cancel Your Orators Bond And release the Judgment which they have Obtained against your Orator for the penalty of the said Bond and that Issues may be directed by this Court to ascertain Your Orators Damages which he hath Sustained and Occasioned by the Neglect of the said Richard Beresford and Richard Splatt in not Fetching away Your Orators Tarr And that the said Richard Beresford and Richard Splatt may Full distinct true and perfect Answer make to all and Singular the premisses As Fully as if the Same were herein repeated And again perticularly Interrogated And that Your Orator may be releived in all and Singular the Premisses May it please Your Honour to grant to Your Orator his Majesties Most Gracious Writt of Injunction For Stay of Execution against Your Orator And one or More of his Majesties Most gracious Writt or Writts of Subpena thereby Comanding them and each of them the Said Richard Beresford and Richard Splatt at a Certain day and under Certain pain therein to be limited [torn] before Your Honour [torn] then and there upon their Several and respective Corporal Oaths true and perfect Answer to make to all and Singular the premisses and to Stand to and abide Such Further Order Sentence and Decree As to Your Honour in Your great Wisdom shall Seem Meet According to Equity and good Conscience. And Your Orator as in duty bound shall ever pray etca.

15th August 1720

Whitaker

74 William Dry, son of William Dry and his wife Elizabeth Blake, was assistant judge in 1721, a commissioner for printing the paper currency in 1723, and speaker of the House, 1728-1729. In the riots of Middleton’s administration, as captain of the Goose Creek militia, he took the lead in planning to seize Alexander Skene in reprisal for the imprisonment of Landgrave Thomas Smith and his son. He married Rebecca, daughter of the first Governor James Moore, supra note 8. In 1737 he sold his plantations at the Quarter House and Goose Creek and removed to North Carolina. (SCHGM, XXXVII, 21; Smith, S. G. as a Royal Province, passim.)

75 Thomas Smith (1664-1738) second landgrave of the name, arrived in 1684 to begin a noteworthy career. During Gov. Moore’s administration, Smith and other members of the opposition were mobbed in the streets of Charleston. Public receiver, 1701-1703; Speaker of Commons House, 1708; and a Dissenter member of Council, which he ceased to attend when offended by Nicholson, he was usually a storm center. During the currency dispute of 1727, he planned to displace Middleton and was arrested for high treason. Refused habeas corpus, he presented a memorial to the House, at whose bar Nicholas Trott plead Smith’s case, and the doors were thrown open to excited crowds; but the Assembly was prorogued before a decision was formulated. On his Winyah Barony near Georgetown, shortly before his death, he projected a port town, which failed, although he bequeathed a town lot to each of his thirty-one grandchildren and great grandchildren. (SCHGM, XIII, 5-20; Smith, S. C. as a Royal Province, pp. 247-252; Wallace, History of S. C., I, 164. See also JCHA for years mentioned.)

Richard Beresford, the only colonial chancellor, appears to have had no legal training except service as clerk of peace in 1690; and as member of Council in 1708. A wealthy merchant and planter, he sat in Commons House 1702-1703, and was sent by the Assembly in 1707 to treat with the Savannah Indians, and in 1714 to England to protest Trott’s powers. Killed by a falling tree in 1722, he bequeathed the “Beresford Bounty” to found a school for poor children. The fund is still in existence. (McCrady, S. C. under the Proprietary Government, pp. 236, 456, 477, 530; JCHA, 1702, 1707; PR, XI, 304.)

Richard Splatt, merchant of Charleston, owned a plantation at Goose Creek and married Anne Mellish, probably before he settled in Carolina. He died in 1728. (SCHGM, XXIX, 4, 5.)