Colonial North America: Harvard Law School Library

Such Judge or Magistrate as soon as may be --- And that the petitioner or his Attorneys do deliver unto the said president and Council authentic --- Copies of such proofs or Affidavits as shall be made in this Matter on his --- part, as also that the said president and Council, do deliver unto the said petitioner or his attorneys Copies of their Answer and of such Depositions or other proofs as they shall think necessary for their Defence within the Space of two Calendar Months after the Service of this Order, as also --- that within one Calendar Month after receiving each other's proofs the said president and Council do in like Manner exchange with the said petitioner the Replies that shall be made by Affidavit or otherwise before they be transmitted to their Lordships --- And that the whole Matter be returned to this Committee under the Seal of the said Island within the Space of nine Months from the date hereof --- And the Governor or Commander in Chief of his Majesty's Island of Barbadoes, The said president and Council and all others whom it may concern are to take Notice and Govern themselves accordingly.

W = Sharpe

To the Kings most Excellent Majesty in Council The humble Petition of Appeal and Complaint of William Letts of the Island of Barbados Esq.r Esquire} Deputy Provost Marshal Gen.l {General} of the said Island & Deputy Serjeant at Arms attending the Court of Chancery in the said Island ---

That the Offices of Provost Maarshal or Provost Marshal Gen.; {General} of Barbadoes & Serjeant at Arms are Offices of a very long Establishm.t {Establishment} in the said Island & have certain Branches of Business Fees Emoluments & Advantages annexed to them as well as positive Laws as by ancient Usage & Custom & the said Offices are --- likewise burthened with many [expensive?] Duties and Services which have the same Foundation --- That his late Majesty King George the first was graciously pleased by his Letters Patent under the Great Seal of Great Britain bearing date at Westminster the 28th day of May in the 2d Year of his Regin to Ordain and appoint Thomas Reynolds and Francis Reynolds Esq.r {Esquire} & the Survivor of them Provost Marshal Gen.l {General} of the s.d {said} Island of Barbados To hold & enjoy the s.d {said} Office by themselves or their sufficient Deputy or Deputys for and during their Lives & the life of the longer liver of them together with all & all manner of Fees Rights Profits Priviledges and Advantages whatsoever to the s.d {said} Office belonging in as full & ample Manner as William Forbes Esq.r {Esquire} late Provost Marshal of the said Island or any other

Execution & if Your Pet.r {Petitioner} shou'd by any Means be --- deprived of the same the Expences & Charges arising from the due Execution of the s.d {said} Office will exceed the Profits --- That the Masters attending the said Court of Chancery are not Officers created by Patent but are Sworn int their Offices & placed at the Will & pleasure of the --- Chancellor of the s.d {said} Osland for the time being only without giving any Security for the due Execution of their said Offices nor are there anyFees settled by the Authority of the s.d {said} Court or by any positive Law which the said Masters can demand or receive for any Business to be done by them in the Selling of estates & the Office of Master in the s.d {said} Court of Chancery of Barbadoes from the first Institution of the said several Offices 'till very lately have ever been distinct - and no ways interfered with those of the Serjeant at Arms - nor ever intermeddled in the Sales of Estates which were always transacted by the Serjeant at Arms --- And Your Pet.r {Petitioner} is advised that the Sales of Estates in the said Island by or before a Master of the Court of Chancery there is against the known Usage and ancient Practise of the Court in Barbadoes and against the Right of Your Pet.r [Petitioner} as Serjeant at Arms and, hath but lately been attempted to be introduced by way of Innovation in the practise there by some Persons attending on that Court, im some [fero?] Instances by the Consent of the Partys concerned without the participation of the Provost Marshal --- And there being Fees due to the Serjeant at Arms for executing the Decrees of the said Court of Chancery Settled

of the Case may require and as to Your Majesty in Your great Wisdom and Justice shall seem meet. --------------------

And your Pet.r {Petitioner} shall ever pray Yea

Proportion to those on Board the Argyl Man of War and that therefore if the 4 Ships are all to share equally it is [?] it sho.d {should} be according to the number of Men agreeable to the Rules of the Navy and tho' {though} the privateers have particular Rules & Agreements amongst themselves yet it is [?] that can no ways affect the Justice of the Case as between different Ships and they may make a Sub Division of what falls to their Share according to their own private Agreem.ts {Agreements}.

2. Whether thos.d Kings Ship & Sloop may on prosecuting their s.d {said} Appeal reasonably expect to obtain any and what Alteration in the Distribution of the said prizes And upon the whole, is it Advisable for them to prosecute such their Appeal.s.

There is no Doubt but that Privateers are intitled to share with the King's Ships in Prizes taken by their mutual assistance, there are many Instances thereof in former Wars, and some in the present War in joint Captures the Law has left the Allotment of the Share of each Ship to the Discretion of the Judge, who is to found his Decree upon the Circumstances of each particular Case in the present Case it is agreed that the two Privateers, and the King's Sloop were engaged with the Enemy, but it seems to be allowed that the Privateers had the greatest part in the Action, and that the Argyle was aiding and assisting to the Capture only by his Presence, without engaging at all, he had therefore the least Merit & Share in the Service, but if the Prizes were to be - distributed according to the number of them, he would have the greatest Share of the Reward, which I cannot think would be just upon the whole I am Opinion the Judge at Barbadoes has given a proper and reasonable Decree, and I cannot advise prosecuting the appeal.

Geo {George} Lee [?] Commons Nov.r [November] 29th 1745

NB Doctor Andrew gave an opinion on this case to the same effect with the above.

Case

29 June 1744. His Majds Sloop Fame & 2 privateer Sloops of St. [?] called the Castor & Pollux fell in with off the Island of [Martinio?] 2 [French?] Merchantment called the Pacifich & the Constant Maria, which all thos.d [?] 3 Sloops attacked & were engaged with some considerable time when his [Mate's?] Ship Argyl of considerable [?] came in sight, bore down upon thos.d [?] 2 [French?] Merchant Men, hoisted his English Colours [as?] fired [?], soon after which both the said Merchantmen struck, one to each of the privateers Sloops, the man of Man sloop having received -- Damage not being up so close at that time.

--3 Aug.t One of the prizes the [?] was Condemned in the Court of [Vice?] {August} Admiralty in -- Barbados upon a Libel Exhibitted on the part of his Majys {Majesty's} s.d {said} Ship Argyl & Sloop Fame But with a Saving in the [Sentence?] of all right which the s.d {said} privateers might be afterwar.ds {afterwards} adjudged to have to any share thereof. The other prize was Condemned on the Libel of the privateers but with the like Saving of the right of the Kings Ship and Sloop. The s.d {said} Kings Ship & sloop and Privateers having Instituted Suits in the Vice -- Admiralty of Barbados for trying their several Rights to the s.d {said} prizes It appeared by the Evidence of the Captains of both the s.d {said} prizes That they wo.d {would} not have struck so soon as they did if they had not discovered the large Ship to be an English man of War NB. There was an Exception taken in the laws that the privateers did not produce their Original Commissions but only Copys from the Records in thos.d [Thousand?] Island they being granted by the Gov.r {Governor] & there And that Indigeallowed of the Copys.

The Judge of the Vice-Admiralty in Barbadoes pronounced [Sentence?] in thos.d [?] Suits wherein he observed that his Matys of Ship & Sloop had insisted they were Jubilled to the whole of thos. {those} two prizes and that thos.d privateers ought not to share with the Kings Ships He observed on one hand the Master of the s.d {said} prizes had swore they yeilded [yielded] to the privateers, however that they sho.d [should] not have struck so soon had not the Argyl -- Man of War been in sight, and from [?] on the other hand it appeared tho Privateers had been engaged for sometime before the Argyl came up, and that it was alllowed on all hands that the Same Sloop had some share in the Action -- from whence he inferred all the 4 Vessels were Intitled to a Share tho' the the privateers appeared to have had the greatest Share in the Action And the Judge declared how as not apprized of any better measure of doing equal Justice than by [?] the [?] prowess of the 2 prizes to be divided into 4 equal parts And the King's Ship and Sloop to [?] to the Privateers & the privateers to the King's Ship and Sloop for the proceeds of the [?] Prizes - And Adjudges [?] the same accordingly from which [?] an Appeal -- was prayed and allowed on the part of the King's Ship & Sloop.

If the [?] the privateers to share with the Kings ships was right, yet it is [?] the proportions of the Distributions are by no means so; One fourth to each Ship without any regard to the [?] of Men does not put them upon an Equality as tho [?] pretends for the number of Men on board either of the privateers bear no ---

Case

For your Opinion

Df. Loo

28. Jos. Sharpe

Breat

Alloyne & Hales } & Dept

It standds in his Honours Paper of Causes

Mr [[Sold?]] Sonorall

Mr Ryds

Mr Browwe

351

J Sharpe Sold

24160

Breat

Alloyne & Hales } H Sof

It stands in His Honors paper of Causes.

Mr.

Mr.

Mr.

J Sharpe Sof.

Cases as to passenger carriers cited in Ingalls v Bills

Aston v Heaven & al. 2 Esp. 533 (1797) Case for negligent driving & coach upset - plf's finger broken Cor. Eyre C.J. Held, cases of goods & passengers totally unlike - Carriers of goods liable, to prevent fraud, & because they can protect themselves & aliter as to passengers - where carriers are liable on the ground of negligence alone.

cited by [Deft?] Israel v Clark & al. 4 Esp. [259?]. (1803) Case for injury to Plf by overturning of coach - ankle broken. One count for overloading - per quod - Verd. for Plf Cor. {Lord} Ellenborough - speaking of overloading, & of exceeding the statute number, he said it depended on the strength of the carriage whether the owners ought to carry so many as that number. "At all events he would expect a clear land-worthiness in the carriage itself to be established."

Christie v Griggs 2 Campb. 79 (1809) Assumpsit v owner, 1^o [1st] for negligence of driver, 2^o [2nd] for insuff^t carriage - which broke down - Plf hurt 1st count disproved - As to 2d count Mansfield C.J. said "If the axle was sound, as far as human eye cd discover, the deft was not liable. There was a diff^ce between a contract to carry goods, & a contract to carry passengers. For the goods, the carrier was answerable at all events. But he did not warrant the safety of the passengers. His undertaking as to them went no farther than this, that as far as human care & foresight cd go, he wd provide for their safe conveyance."

[?] nisi prius wh. explains apparent self contradiction -

(6) Croft v Waterhouse 3 Bing. 319. [1825] Case for negligence of driver in upsetting coach- [[?]] injured- A wage-mark had been removed within 12 hours before, which misled the driver, who "gathered a bank", & overturned- The judge told the jury that as the road was not obstructed, in fact, they must lind for [[?]], because of deviation- New trial granted- because "the distinction between carriers of goods & carriers of passengers was not sufficiently left to the jury": - & because "every thing appeared to have been done that human prudence could suggest."

cited by [[?]] (a) Brenner v Williams 1 C. + P. 414- [1824] Case for damage by insufficiency of coach- [[?]] was riding in dickey, which came offBest C. J. held that owner should examine coach previous to every journey- & that as this had not been done, [[?]] was entitled to recoverIt was admitted that the breaking might have been occasioned by previous overloading = & was proved that the driver was notified of the danger, on the way, & neglected to attend to it. &c

Sharpe v Grey 9 Brig. 457 [1833] Assumpist v coach owner- Axle broke- The defect might have been seen by unscrewing the champs & taking off the woodwork of the axle- Tindal C. J. left it to the jury to consider whether deft had used "that degree of vigilance which was required by his engagement to carry [[?]] safely." [[Recd?]] for [[?]].

Park J. was against a new trial because the jury had found actual negligence in factGaselee J. of same opinion- ([[crossed out]]) Alderson J. of same opinion- and said that owner was responsible for all defects which could be seen when the caoch was constructed, or which could be discovered afterwards, on investigation. Bosanquet J. alone said the coach was not road-worthy; & that "the owner was liable for the consequences, upon the same principle as a ship owner who furnishes a vessel not seaworthy"- This analogy is not true - except as to goods. This case is understood to adopt the doctrine of Christie v Grey- per Savage C. J. in Camben + Amboy Co. v Burke 13 Wend. 627.

Amies v Stevens 1 Stra. 128. (5 Eco. 1) Action v carrier (hay-master)- accident in passing bridge- Deft held dischd per act. Dei- not bound to have a new carriage for every journey- sufficient if he provides one which will perform without extra accident. Per John Pratt C. J.