Wharton v. Elson

2 Rec. Co. Ct. 661

• Court: New York County Court, Suffolk County
• Decided: January 25, 1675
• Status: Published

Opinion

Richd Wharton & Thomas Bendish in behalfe of themselues & Correspondants late Hirers & affreighters of the Ship Blessing plaints agt James Elson now or late Master of the sd Ship Defendt in an action of the case for that the sd James Elson hath unjustly & indirectly in France recd into & still detaines in his hands the Summe of One hundred Ninety Seven Livers or thereabouts belonging to the plts & theire Correspondents which hee acknowledged to haue received & is so much more then the utmost penalty of a Charterparty, upon pretence whereof & of demorage due to the sd Ship hee witholdeth the aforesd Summe, whereby the plts & correspondents are damnified thirty pounds or thereabouts with other due damages according to attachmt dat. January. 19° 1675. . . . The Jury . . . founde for the plaints One hundred Ninety seven Livers or nineteen pounds Fourteen Shillings New-England mony & costs of Court. The Defendt appealed from this Judgemt unto the next Court of Assistants & himselfe principall in Forty pounds, mr Peter Lidget & mr Samll Shrimpton Sureties in £20 apeice acknowledged themselues respectiuely bound to . . . prosecute his appeale . . .

[ The documents filed with this case reveal an interesting and doubtless profitable triangular trade between Boston, the French West Indies, and France. First is the owners’ letter of instructions to the master (S. F. 1430.2):

mr James Elson Boston November. 12th 1674

Sr wee having yesterday loaden yor Ship Blessing & finished what on our parts appertaines to yor dispatch, wee now advise & order you with the first oppertunity of winde & weather to depart & Saile hence as directly as you can for the Island of Martineco & there apply yor selfe to mr Clerbo Bergee or in his absence to mr Augustin Melott & to attend theire orders for delivery & dispatch of the Ship according to Charterparty, but in case you finde neither the sd Gentlemen there, nor such other Order as may correspond with yor & or Security & the sd Charterparty, then wee referr it to yor own discretion to gain the best advise you can for the disposall of yor Loading at Martineco or any other of the French Jslands & receiving aboard again the effects thereof & such goods as may offer upon Freight to yor full loading & therewith to Saile to the port of Rochell in France & there wth the advice of mr Bailly to receive yor Freight & dispose thereof & [or] effects aboard to the Satisfaction of yor Ship hyre & the remainder to leaue in his hands for or use; Also wee advise & order you that in case the Dutch haue made a conquest of that Jsland & so you bee debarr’d of trade wth French & Dutch, or in case you haue certain news of warr between England & France that then you either Saile to the Jsland of Barbados or Nevis as the winds may favour & you may judge most profitable & at either the sd Jslands where you may arriue to deliuer or addresse unto mr John Johnson at Barbados & to mr Joseph Martine at Nevis & from them to receive & observe orders & direction for yor proceedure upon & conclusion of yor voyage according to Charterparty; wee also advise you that to prevent any disappointment to yor selfe of the hire of the Ship, that yow make all Freight payable to yor selfe by bills of loading, also for feare of death absence or other adversities, wee haue advised or Freind to joine yor selfe with whome ever else they shall Nominate in the consignment of the proceeds of yor present loading, of woh wee desire you to take speciall notice that according to the honesty of our intentions our Stock with you & yor Ships earnings may first bee disposed to yor Satisfaction & the overplus remaine with or Freinds that may bee joined with you in the consignment or upon or accots remitted to mr Robert Bensdish Mercht in London This wee hope may bee sufficient direction for the conduct of or buisness under yor charge; But in case of any such exigent or contingency as may render the observation hereof Jmpossible or pernicious then wee conceede that yor own discretion and the best advice you can obtain may direct you in the progress (as wee expect that common reason & equity should you & yor Owners in the issue) of yor Voyage, which wee shall pray may bee prosperous being.

Yor assured Freinds to Serve you

Richard Wharton

Thomas Bendish

Wee haue aduised our Freinds to supply any casuall want upon reasonable consideration, yor care over yor horsekeeper is desired, to take him into wages as hee may deserve after his present Service is ended, otherwise to dispose him into some of or Vessells, where hee may haue imploiment & passage home.

. . . true Coppie . . . Jsa Addington Cler

Several depositions follow:

S. F. 1430.9

William Geerish Chirurgeon aged about twenty seven yeares Saith that hee lately belonging to the Ship Blessing James Elson Master in her Voyage to the Jndies hee never heard or understood that the sd Elson either protested or gaue any warning or notice to mr Bergier when the time limited by Charterparty expired: and the Depont testifieth that hee hath sundry times manifested to the sd Elson his disatisfaction at the delay & loss of time in the west Jndies, and one time when mr Bergier had been long absent & the Ships company had little to doe, the Depont moved the sd Elson to send to mr Bergier for orders or to know his intention & offered to goe himselfe to mr Bergier if the mr would hire him a horse (the way to traivail being very bad) but the sd Elson answered that if the Ship lay there a twelue month hee would not hire a horse, and that other times hee hath heard the saide Bison Say that all was bound over to him for the paymt of the Ships hire, and if hee could but receive enough to pay the hire hee did not care; and sometimes upon occasion & when the Employers wrong & loss hath been spoken of, hee hath heard him say hee was not concerned for the Jmployers, but the Owners interest or words to that purpose and the depont Saith that mr Elson hath sundry times been spoken too to protest agt mr Bergier, but his answer was hee had not power so to doe, and the Depont Saith that himselfe and others of the Ship’s company did looke upon the Master to remiss in quickning mr Bergier to a dispatch: And further the Depont Saith that hee findes by his Journall that the Ship stay’d at St Christophers from the. 16th till the. 26th of June & there delivered out two or three parcells of Sugar, the number of caske the Depon’t knows not; and the Depont Saith that the sd Elson hath discted with the depont two Shillings for every liver hee recd for his wages in France & further Saith not

Thomas Wilkott Marriner aged about. 35. yeares testifieth that hee knowes the Substance of what is abouewritten and deposed to bee true, hee being Boatswayne of the sd Ship and pertieularly the Doctors offer to goe to mr Bergier if mr Elson would hire him a horse & the mrs answer was in the words or to the same purpose that the Doctor hath deposed, onely the depont Saith hee remembers not the Mrs expression that hee was not concerned for the Jmployers, but hath heard difference between the mr & Doctor upon acc° of the Jmployers interest: And that theire Stay at Christofers & Disct for the deponts wages was as the testimony aboue declares.

Sworn in Court by both witnesses. January. 26°: 1675

as Attests. Jsa Addington Cler

There are others of the same tenor in S. F. 1430.12. Robert Sanderson and Jeremiah Dummer, the silversmiths, deposed (S. F. 1430.11) that the French crown was worth “not more than 5s 5d at most” in New England money; Augustin Mellot testified (S. F. 1430.8) that the ordinary exchange value of a “liver” from Boston to La Rochelle was 2s; but Peter Lorphelin deposed (S. F. 1430.10) that a friend of his had been able to obtain but 20d for a French livre in Boston.

Elson’s bill of lading from St. Kitts to La Rochelle, and his letter of introduction from Clerbaut Bergier, follow (S. F. 1430.13, 6):

J James Elson Master under God of the Ship Blessing of Boston burthen two hundred tunns or thereabout being at ancor at present before St Christopher for & with the first convenient weather which God shall send to pursue the Voyage untill & before the Citty of Rochell where shalbee my direct unloading, do acknowledge to have received under the deck of sd Ship of you Clerbaut Bergier the goods following vizt two hundred Forty hhds & twenty quarter casks of Muscovado Sugar which are going for the accots & Riscos of mr Wharton & Bendish Bertram Servant James Elson William Gerrish dwelling in Boston, which Merchandizes J promiss to deliver in Rochell unto mr Debaussay, John Bailly and the sd Capne or unto his order Factors or Intermedler the danger of the Seas excepted of which God keepe us: For the fulfilling of what aboue J haue obliged by these pursents my body goods & my sd Ship Freight & apparrell in Showing mee one of those bill of loading, & the sd Debaussay Bailly &a shalbee bound to pay mee for my Freight of the sd goods the Summe of ten deners per pound & shall oleare the company & other advarages & duties accustomed. Jn Witness whereof J Master abouementioned James Elson haue Signed of my hand three bills of loading . . . made in St Christopher the fifth day of the month of July. 1675.

Received the number of Casks the quantity & contents not known.

Per mee James Elson

. . . true Coppie . . . Jsa Addington Cler

In St Christophers the 6th July. 1675.

Srs

As mr Richard Wharton & Thomas Bendish Mrchants in New Enland haue directed here to mee the Capt James Elson present bearer with order to direct him to you, wch J do & according to the order wch they ought to have given you, you shall dispose of the Cargo wholly seeing that it is for the produce of theire goods, as you shall see by the bill of loading herewith: they did promiss to send mee other Ship, which J haue order also to direct to you J conclude assuring you that J am

Yor humble Servant

Bergier

To mrs Devanpray Senior & mr Bailly merchant Jn Rochell

. . . true Coppie . . . Edward Rawson Secret.

Captain Elson explained these proceedings in the following deposition (S. F. 1430.14):

Boston the 17th of December. 1675

The deposition of James Elson Master of’ the Ship Blessing aged about. 32 yeares testifieth & Saith

That according to the orders of mr Richard Wharton & mr Thomas Bendish to whome the Ship Blessing was let per Charterparty, J applied myselfe to mr Mellot of Martineco, to whome J was ordered in the absence of mr Bergier, & by virtue of sd Mellots order J sailed sd Ship to Guardeloop where find sd mr Bergier J attended his order & sailed the sd Ship from Jsland to Jsland with him the sd Bergier & by his order for the unloading & reloading the Ship & that no time was spent with sd Ship in the west Jndies or on the Voyage but by sd Bergiers order, to whome J was consigned with the Ship, who also was concerned ¼. part of sd Ships Freightment as mr Richard Wharton told mee here, before wee sailed hence: Also that assoon as the Ship was loaden in the west Jndies mr Bergier gave mee his orders to Saile the Ship to Rochell & consigned the same to mr John Bailly there, where after the delivery of the Ship J made up an accot with sd Bailly for the Ships hire and demurrage & is now in Court who paide mee the full of saide demurrage for the persons concerned in France, and J urgeing for all according to sd Accot so made up, hee refused for mr Whartons & mr Bendish’s parts for want of effects as appeares per the protest now in Court: And for my not protesting in the west Jndies as mr Wharton urges J could not doe that hee having a liberty per the Charterparty, paying 55. livers per diem till his orders in the Indies could dispatch the Ship, and for the dayes of demurrage & times of the Ships arrivall at the severall ports, is justly expressed in the accot made up with mr Bailly which accot is now in Court under saide Bailly’s hand, and further that J am no waies concerned in this case but as Master of the Ship in behalfe of the owners: And further this deponent saith that hee received of mr John Bailly for so much of the produce of the Cargo as hee carried from the west Indies together with the Freight that the Ship made to Rochell but twelue thousand five hundred eighty Six livers Seventeen Sous & four deneirs as mr Bailly told mee it produced, & that the two thousand Six hundred [torn] eleven Livers eleuen Sous four deneirs hee advanced for the [iora] demurage of the Ship for the persons which lived in Fran[ce] & told mee hee would not advance anything for mr Wharton [tern] Bendishs parts having no effects of theires in his hands & furth[er] saith not:

Deposed in Court the. 17th Decembr 1675. the Master adding that hee was not concerned otherwise then mr of sd Ship. Edwd Rawson Secret.

. . . true Coppie . . . Edward Rawson Secret

Copia Vera . . . Jsa Addington Cler

The owners, not liking these proceedings, wrote to Michel Boucher, merchant of La Rochelle, a letter (S. F. 1430.3) which reveals more respecting the fish trade between New England and France.

Mr Bourcher Boston January 28:1675

Sr yors of the 25 of March and 5th of Aprill last wee received, Togeather with The protest of ye Bills of Exchange Mr Bergier drew, and by a post Script to yor last yw Intimate a possibility of getting paym[t] Mr Bayly being Concerned in Mr Bergiers business, wee haue ever since Expected To haue had yor advice, what Success yw had in the matter and for want thereof haue been at Some loss how to Deale wth Mr Bergier, but receiving noe new orders, or advice, from yw, and he [ariv]ing heer without any estate, and in Expectación of Some Supply from France (which also faild) wee were forced To make a Vertue of Necessity, and Take an Assignacion from him of his Concerne Sent [home] in ye Severall Ships from ye Jndyes, great part whereof he protests he purposely Devoted and Directed To yor Satisfacción, And he Seems To be much Concerned That his effects should be Intercepted, or misimployed, Wee heerwith Send yw ye sd Assignacion and Sundry Bills of Loading and of Exchang, To Jnforme yw what sd Bergier hath sent, and To whom; Particulerly yw will receive a Bill of Loading Signed by James Elson for 46: hhds of Sugr Eleven baggs of Cotton wooll, and some other Small matters, Togeather wth ye Sd Elson and his Chirurgeons oath, Indorsed upon ye sd Bill That ye Sd goods were Delivered To Mr Bayly, By all which (if yw haue not already received Satisfacción) wee doubt not but yw wilbee inabled To recover yor right; Sr For want of acquaintance wth Mr Bergier, when he arived heer wee haue not onely Created this trouble to yw, but great Damage and loss to our Selves, and Sundry of our friends, And wee Canot Thinke yt Mr Bayly hath been [Kind] unto us, in recomending Mr Bergier to us as ye person whom he advised us To Consigne his our owne & friends Concernmts to in ye West Jndyes, for before Mr Bergier arived heer Mr Bayly Sent Mr Mellott hither, with a licence or passport for an English Ship To Trade in ye French plantacions, and acquainted us That soone after he [would] send us more passports, for more ships and then Mr Bayly prop[ound]ed to us to Concern our selvs and friends wt part wee pleased in ye [s]d Ships loading, and Cargoes, and gaue Jnstrucción in writing to ye sd Mellott, what Cargoes To provide for Louding of sd Ships, Expressly injoyning That Such Ships should be Consigned to To his Coos: Mr Clerbo Bergier, And [w]ee by our advice were to [lae] our Directions from ye Jnstruccions given Mr Mellott; and Indeed by ye reprsentacion of the affayres to us, wee thought Mr Bergier had been of great account, and reputación, and the onely person who by his Interest had obtayned those licences, and none else Capable enough to Jmprove them, — Besides Mr Mellott then heer Concealed Mr Bergiers Condición from us and gaue us all Jmaginable Jncouragemt To Creditt and Concern ourselvs & friends with Mr Bergier, By which and what wee further prsume To Trouble yw with, yw will See yt wee haue been insnared for want of good advice from Mr Bayly and Mr Mellott,

with This yw will receive yor acc° of Sales, and ace° Currt wch wee purposed to haue ballanced in ye Sommer, But a Ship ye Mr Bayly sent hither by woh wee reed yor protest, Kept us in Expectación of it till ye Summer was passd, and all our Bilboa fleet gone, and afterwards ye person Intrusted with ye Dirección of sd Ship went with her to ye Jndyes, nor hath any other ship gone this yeare To Rochell yt wee know of, and our Concerns there are Soe Small That wee found not occasion to hire one, And now meeting with This oppertunity for Bourdeux, wee haue shipd for acc° of Some Gentlemen there Some Small quantity, and should haue shipd ye full ballce of yors alsoe, for yt port But ye unseasonable weather & ye great hinderance that thereby hath happend in her Loading, hath made us Jmbrace another way, that wee hope may be more advantageous to yw then to send yw fish that in probability would Come to late for ye Lentt, Therefore wee send yw Bills of Exchg Drawne by Captn Jn Phillips and one of us, upon Mr Bayly for £2117:08:07d; and in Case he refuse acceptance and paymt wee haue made an Assignment to yor Selfe, with Sufficient proofe annexed that he hath soe much of ye Drawers in his hands, woh for want of good advice from Mr Bergier he Detayned from Captn Hobbart, as supposing Mr Bergier and himselfe Concerned, whereas there was a Division (according to agremt) made in ye Jndyes, and the part that belong[s] to Mr Bergier and Mr Bayly left in Mr Bergiers hands If yw please To read ye papers relateing heerto yw will Clearly See That ye Ship Katherine was loaden heer for ye French Islands, & the Cargoe sent thence in Company halfe Captn Phillips & Wharton, & halfe for Mr Bergier and Mr Bayly, and that ye Suger produced with the sd Cargoe was to be Divided in ye ludges, and the halfe belonging to ye Concerned heer to be Deliverd to Ct Hobbard Comander of ye Ship and in ye Ship to be Carryed to Rochell for acc° of of the Concerned heer, and upon their adventure [&] Mr Bergier to Dispose of the other halfe for acc° of himselfe and Mr Bayly which might alsoe haue Come for Rochell in ye Same Ship if Mr Bergier had seen it good, but it seems he otherwise Disposed of it, And when ye Ship arived The Master Confideing in Mr Bayly Comitted the Sugrs That belonged to his Jmployers heer to Mr Bayly to sell woh when he had Done although he passd his receit upon ye Bill of Loading, yett upon prtence of his and Mr Bergiers Interest he Detayned ye aforesd sume of £2117:8s7d in his hands ye Reasons yw will find in his letter heerwith sent yw, and wee Doubt not but when yw shall make Demand and Comunícate ye assignmt and evidences but yt he will accept and pay the bills, and lest yw should Sustayne any wrong by this Exchange, wee Doe oblige ourselvs That whatsoever ye Samme Valew laid out in fish would, or Doth yeild when this ship arives, Clear of Charge wee will allow it to yor acc°, upon yor advice and onely Deduct this Summe; if yw receive it, and in regard there is a probability of Some Trouble in ye recovery of This Summe, wee shalbee willing To recompence it by freeing yw from ye adventure of ye Sea, and makeing soe much money good to yor acc° as ye fish that might be purchaced wth what is yor Due heer may yeild Clear in France, wch wee hope wilbee soe Satisfactory to yw as to perswade yw To Jndeavour ye recovery of this Summe thus assigned y”', Mr Mellott is now with us and before he parts wee will efectually provide That ye Money he was To remitt yw shalbee paid with Due Consideración and that & what more may be Due to yw shalbee sent yw by Exchange, or in fish logwood, or hides as yw shall Direct, wee Could Send yw plentifull Testimony of ye bad Condición of yor wyne, but none yt any thing Considerable was Damnifyed aboard, but yor Cooper had been Very negligent in putting it into Corrupt and Crazy Caske, Those yt bought it haue Considerable part by them, woh they Can neither Sell at any price nor turne To Vinegar, wee are heartily Sorry yt wee Can giue noe better Jncouragemt To yt Good Disposición yw manifest to a Trade to this place, all lynnens Silks & Dry goods are Very Plentifull & Cheap, and Soe like to Continue ye next year By Reason of warr, with ye Salvages which Doth much obstruct trade, Wheat Rye Brandy Some Sound wyne and Vinegar will probably sell to good advannce, And if it be yor pleasure To make Tryall To recover yor first loss, wee Judg yw may receive good advice from one Mr Jn Toton, of yor owne nación, that Comes in in this shipp — he is well Knowne to Mr Bayly, and well Knows ye state of this Countrey, and hath a good reputación amongst us, and if yw Concern yor Selfe with him, or any other yt may Come over, one of us will readily assist them but shall not otherwise Meddle with any of yor affayres, Till by a better occasion yn ye formr wee may assure yw that wee are

Sr yor Faithfull Servts

Richd Wharton & Compa

Sr Jn Case yw faile of Satisfacción for ye formr Bills of Exchange if yw Can procure an assignaeion of Mr Duportand for ye Bill of Loading Signed by Mr Elson & send over with Mr Bergiers assignaeon now Sent yw wth good evidence wee shalbee able To recover ye Goods of sd Elson in regard he Delivered them not according to Bill of Loading

Fish hath all this Summer & autumne been 203 at least 19s it is now 15s per Q11 and about 3d Charg in shipping.

R W

From Boucher they received the following notary act (S. F. 1454.1 — apparently the original):

Generalité [ Coat ] de Poitiers

petit papier [ of Arms ] un sol

pour feuille

Aujourdhuy Neufiesme Apuril mil six cens soixante seize le Requeram le sieur Michel Boucher marcham de ceste ville y demeuram Rue du temple parroisse de saimt Sauueur, Moy notaire Royal rezerué en la ville de la Rochelle soubzsigné me suis aueg luy transporté en la maison et domicilie du sieur Jean bailly aussy marcham en ceste dite ville s[i]zé rue de saimt yon dite parroise de saimt Sauueur ou estam parlam a la personne dudit Sieur bailly, ledit sieur boucher a presenté et faict voir vne lettre dechange Escripte descripture et Iangue angloize dom la teneur sur la traduction quy en a esté faite de ladite escripture, en celle francoize suit, a boston januier 26. 1675 stile dangleterre, a vingt Jours de veue par cette nostre premiere dechange, nostre seconde et troisiesme nestam point payéé, Payez a monsr michel Boucher ou ordre la somme de deux mil Cem dix sept liures pour valleur Receue joy Ne menques pas de faire bon payeman Et postez le mesme comme par aduis et compte de Vos seruiteurs John phillips, Richard Warton, a Costé a monsieur Jean bailly marcham a la rochelle, comme aussy a ledit Sieur boucher presenté audit sieur bailly la lettre dauis a luy escripte par les tireurs de la lettre dechange dom est question dattée de boston le 26. Januier 1675 Escripte aussy en Iangue Et Escripture Engloize laquelle ledit sieur Boucher apres auoir Icelle parraphee de son paraphe ordinaire Ne varietur la offerte delliurer et mettre es mains dudit Sieur bailly, Sommam. Icelluy dj celle prendre et [Recejuoir, et de presenteman accepter ladite lettre [de]change sus dattéé et dom est question pour la payer dans son temps, Protestam ledit sr boucher que faute de ladite acceptation Et payeman et du Conteneu en Icelle jl poursuiura en justice ledit Sieur bailly aux perils risques et fortunes desdits Phillips Et Warton en vertu de leur procuration Et pieces Justifficatifues quils luy om enuoyé a cest effet Et dom dutom jl donnera Coppie audit bailly, la traduction estam preallablemam faite, le tom Soubs les protestations expresses que fait ledit Sieur Boucher par ces presentes denestre veu A prouuer les remizes faittes par lesdits phillips Et Warton audit boucher en lettres dechange dom celle cydessus fait partye et de se pouruoir contre et sur Ies effets djceux phillips Et Warton pour ce quy luy est par eux deub, Et Encore tarn contreux que Contre ledit bailly pour raison de la susdite Lettre dechange susdattéé dechange Rechange frais des [pans] dommages et Interrests, mesme de prendre pareille somme de deux mil Cem Dixsept liures auchange Et generallemam de tom ce quil peut et doibt protester en Rencontre semblable et de ses droits contre les Vngs et les autres A quoy ledit sieur bailly a fait responce quil ne voulloit accepter ladite lettre [d]echange my payé le conteneu en [jcelle] pour nauoir aulcunes prouisions ny ne debuoir aulcune chose aux tireurs et que les protestations contre luy faites ne luy puisse nuire ny prejudicier, Et a seullemam pris et Accepté Ladite lettre dauis paraphée que dite est cydessus, duquel reffus dacceptation ledit sieur boucher a requis acte et de ce quil a persisté Es susdites Sommacions et protestation, ce quy luy a par moy esté octroyé Ensemble de ce que jay audit sieur bailly dellaissé coppié des presentes a la rochelle Le jour et an de lautre part presensts tesmoings Jean parier et anthoine billé clerg demeurams en ladite Rochelle Et a ledit bailly Refuze de signer quoy que requis de le faire. Signe en la [ ] des presentes M. boucher, J. parier, Billé et bourot nore royal a Costé est escrit Co[ ] a la roll le 10 apuril 1676 folio 205 du xix registre „

„ Bourot

Notaire Royal

Wee Whose names are Vnder Written English Merchants Resident in Rochell do Certifie all Whome it May Conserne that the a Boue named Bourot is a Not-taire publique ordained by the king passeing all acctts of lustis acording to Law as Wettnesses our hands in Rochell the 22th Ieune 1676

Andrew Stirckey & C°.

Andrew: Whitley

[Endorsed:]

Sommation le sieur Michel Boucher Au sr Jean Bailly 1676

Protest de la lettre de 2117li sur monsieur Bailly

The Court of Assistants (Records, i. 58) upheld the verdict of the lower Court and ordered Elson to pay 14s additional costs.]