Paul Dudley and Edwd Tyng Junr plaints conta Nicholas Paige and John Poole in behalfe of themselves and Compa Defendts in an acción of the case for the Forfiture of a bond of two hundred pounds money under their hands and Seales by the non performance of certain covenants mentioned in a Charter party bearing date the first day of January. 1677. in woh sd bond is included with all other due dam*1117ages; . . . The Jury . . . found for the plaint, two hundred pounds money being the Forfiture of ye bond and costs of Court: Upon Request of the Defend* & hearing of both partys The Court chancered this Forfiture to one hundred and Sixty pounds mony (not including any disburstm*3 made the Hiro13 upon the vessell before the expiration of the uncertain time) & costs of Court: The Defend*8 appealed from this Judgem* unto the next Court of Assistants & put in Security for prosecution thereof to effect.
[ S. F. 1837.7
This Charter party of fraightment, Indented, made, and Concluded the first day of January in the yeare of our Lord, One thousand Six hundred, Seventy & Seven By and Betweene Edward Tyng Junr and Paul Dudley of Boston in New England Merch*8 Owners of the good Catch called Mary of Boston, of the burthen of Twenty five Tons or thereabouts, now lying in the port of Boston, on the one part, and Nicholas Paige and John Poole of Boston aforesaid, merchants in the behalfe of themselves and Company, on the other part Witnesseth That the Sd Edward Tyng and Paul Dudley have and hereby do lett to fraight the hull or body of the Sd Catch with all her tackle apparrell and appurtenances vnto the Sd Nicholas Paige, John Poole and Company merch*8 and the sd Nicholas Paige Jn° Poole and Company have hired her for five months Certaine and five months more vncertaine for a voyage to be made with her, by gods assistance, from Boston aforesaid to Ronoake, and from thence to Berbadoes Nevis and Jamaica, or either of them, or any other of the Careebe Jslands, and So to the bay of Campeachy, and from thence to Boston aforesaid, the port of her right discharge, And the Sd Owners of the Sd Catch do hereby Covenant that the Sd Catch is, and So during the aforesaid voyage Shall bee kept Strong and Stanch, well and Sufficiently tackled & apparrilld with masts, Sailes, Saileyards anchors, Cables, boate Oares, and all othT Jnstruments and furniture necessary, for Such a Catch in Such a voyage Jn Concideration whereof the Sd Nicholas Paige & John Poole in the behalfe of themselues and Company, do hereby Covenant promise and graunt, to and with the Sd Owners of the Sd Catch, to pay or Cause to be paid vnto the Sd Owners, their Exec13, admrs or assignes, the full and Just Summe of Tenn pounds of Lawfull money of New England per month reckoning the month according to the Callender, and So proportionably for the odd dayes vnder the month, for the full fraight or hire of the Sd Catch, for So long time as She Shall have bene in the Sd Merchants Service, in Manner and forme following that is to Say the full fraight or hire that Shall be due at her arrivall, at her first delivering port in the Jndies, whether it be Berbadoes, Nevis Jamaica, or any other of the Careebe Jslands, is to be pd and shall be paid within Thirty days next after Certaine Jnformation, given in Said Boston of the sd Catches arrivall there as aforesaid, and the full remainder of the Sd fraight or hire within Twenty days next after the arrivall and discharge of the Sd Catch at Boston aforesaid the port of her right discharge, And the Said months pay is to beginne, and Shall be accounted from the Seccond day of this Jnstant January, and end when the last goods Shall be deliuered, out of the Said Catch at Boston aforesaid, the port of her right discharge, And the Said Merchants fraightors, do hereby further Cove*1118nant, well and Sufficiently to victuall and man the Sd Catch, for to performe the voyage aforementioned, and to provide a Sufficient pilott for the Sd Catch in her voyage from Boston to Ronoake, And further, that in Case the Said Catch, Shall Stand in neede of any repaire during the Sd voyage, that then the Sd Merchants fraightrs shall and will disburse for the necessary repaire of the Sd Catch, So that She may be able to performe the voyage aforementioned, which Sd dis-bursments shall be Subducted out of the fraight or hire of the sd Catch at the port of her right discharge, Summe for Summe, without allowance, And it is mutually agreed by and betwene the Sd parties to these presents, that the Sd Merchants fraightors, Shall and will pay or Cause to be paid Two third parts of all the port Charges, and the Sd Owners one Third part thereof, that Shall arrise and accrue for the Sd Catch, in the Sd voyage, And lastly for the true & reall performance and accomplishment of all and Singular the Covenants grants articles, payments and agreements, and all other things above rehearsed the sd parties have bound, and hereby do binde, and oblige themselues their heires Execrs and admrs, each vnto the other in the penall Summe of Two hundred pounds of lawfull money of New England, well & truly to be paid, by virtue of these presents. Jn Witness whereof the partys abouenamed, to these present Charter partys, Interchangeably have Sett their hands and Seales, the day and yeare first aboue-written
Nich° Paige & a Seale
John Pole & a Seale
Signed Sealed and delivered in the presence of vs (well and Sufficiently) first interlined
Edward Lilly
Jsaac Walker
John Hayward Scr
Ownd in Court 27° Janur0 79 by mr Paige and mr Pole
as attests Jsa Addington Cler
Endorsed,
Jt is Concluded and agreed vpon, betwixt Edward Tyng and Paul Dudley, owners on the one party, & mr Nicholas Paige, mr John Poole and Paul Dudley hirers on the other party, that the Ketch proceede to Jamaica, from this place, and from thence to the bay of Campeachy and from thence to Boston directly, foure months hire being due, to be paid at Boston, Thirty dayes after news of her arrivall at Jamaica, refference to the Charter party in other things being had, Witness hereunto our hands and Seales, this fourth of Aprill 1678 the vessel entring into pay the Seventh of January 1677
Nich° Paige & a Seale
John Pole & a Seale
Witness
Paul Dudley & a Seale
Thomas Skinner
James Butler
Ownd in Court, 27° Janur0 79: by the three parties: Subscribing attests
J: Addington: C
Instead of setting sail on the appointed voyage, the ketch Mary appears to have tarried in the Governor’s dock in Boston. Judge Tyng *1119(the plaintiff’s father) had her surveyed by four shipbuilders, who reported (S. F. 1837.1) that she was “Sound and Stronge and Sufficient to perforare any voyage that a vessell of that burden is Capable to per-forme”; four other experts reported (S. F. 1837.11) that she was “Strong and Substantiall, fitt for the Sea, and her decks thite and Sufficient . . . as also that she is thite and well Caulked both below and in her vpper works.” Paige and Poole later asserted (S. F. 1837.9) that the Mary was only
. . . worth, fifty pounds: being and old vessell Bult vpon an old Shallop, and very Dangerous for men to venture there Liues in, allthough, shee had a suruay, it was in the winter time soe that the Suruayo13 could not Judge soe well as they might haue done had it bin a Couenient time of the year, But when others had taken notis what shee was, noe mastor or men Could bee procured to sayle in her for seuerall months, After shee was Hyred: as will appeare by there owne protest.
On 2 February 1677/78, Tyng and Dudley entered an instrument of protest (S. F. 1837.5) against Paige and Poole for neglecting the ketch so that she was subject to damage and detriment. This appears to have had the effect of getting the Mary under way, and a rough passage she had. One stage of the homeward voyage is described in a letter of her master from St. Kitts (S. F. 1837.10):
Srs
My Service presented to you, this is to Certifye you of my troublesome voyage, J were in the gulfe nineteene days, in the most Cruell weather, that ever man was in, but blessed be god J am escaped cleare, but J have splitt all my Sailes, and J beate Twenty one days afterward, J gott cleare before my men forced me to beare away for my water well Spent, and for feare yt wee should not gett in, they would not beate no longer, a tedious voyage J haue had as ever had man, now J do intend for Nevis and if J Can gett a price for my wood J would dispose it, Jf J Cannot J will away for Corrisoe, and So for Jamaica and the bay, and So home, nothing else at present but rest
Yours to Command
Ro: Lisly
Christopher Novembr ye 11:78.
Superscribed: These for mr John Poole and mr Paul Dudley, Boston. Vera Copia Attest1 Jsa Addington Cler
S. F. 1837.15
The Deposition of James Allison, aged Twenty Bight yeares or thereabouts, Testifyeth and Saith, that he being in the Jsle of Nevis in the yeare 78 that there did See Robert Lisly, and did heare him and Company Say, that all the Sailes that they had were not worth any thinge, and that they were forced for to take their bed Sacks for to mend them, and that if they had good Sailes they might have gott home, and not gone for any of the Careebe Jslands, and further I did *1120heare the Said Lisly Say, that he was forced for to sell his Cargo for to fitt the vessell, and that it Cost him more more the hull of the vessel was worth.
Taken vpon oath, Jan-y 27° 16» before
peter Bulldy
Vera Copia Attest1 Jsa Addington Cler
Others deposed to much the same effect; Robert Pelton said that in Nevis, in 1678, he had heard Lisly and his mate, Stephen Butler, both blame the sails for their having been blown off the coast of New England, “for they had not a Saile that would Stand in the boltrope.”
The following document (S. F. 1837.4) is probably the basis of the plea in this ease:
Plea for penalty of Charter party
That it is neere Twenty five months, Since our ketch entred vpon their Jmployment, her pretended voyage, being from Boston to Jamaica, from thence, to the bay of Campeachy, and from thence directly for Boston according to Charter party Dated prim0 January 1677
That neere two months after, the letters of Said ketch drew a protest against the hirers, for all dammages, that might happen to Said vessell for their not putting men on board to Secure Sd Catch and furniture from all dammages, that might happen, but letting her lye in the Govorno13 dock at Boston, with none to looke after her, their not fitting out sd vessell in time, being wee doubt not the Occasion of her being blowne offe the Coast, when She attempted it, as hath bene the Case of other vessels,
That the ketch was every way Substantiall to performe the voyage of 6. months Certaine and 10. vncertaine appeares, by the Survayes, and other Evidences presented,
That in this time of the vessels absence, she hath made many voyages Since her vncertaine time was out, viz* from S* Christophers to Saltitudus, from thence to Jamaica, from thence to the Camamas, and from thence to S* Christophers againe, wee being kept out of our money and vessell, which may rationally be accounted greater dammage, then the penalty of the Charter party, the hire of Said Katch, the time they have had her amounting to about Two hundred and fifty pounds at 101 per month, and hath bene formerly lett at 121 per month.
That the hirors of Sd katch Cannot make appeare, any disbursment vpon her, before the vncertaine time was out, and if they pleade for further time to discover anythinge, wee answer, Jt is about fifteen months, Since the vncertaine time was out, for the returne of our vessel which is time too much to be informed in, we are Sure to long for vs to be kept out of our due
Vera Copia attest1 J. Addington Cler
Paige and Poole not only appealed, with reasons (S. F. 1837.9), but sent up the following petition (S. F. 1837.6):
To the Honbl Court of Assistants, in Boston March 6. 16J-g-.
The Petition of Nicholas Paige & Iohn Pole.
Humbly Sheweth
Wheras mr Paul Dudly & Edward Ting Iioni1 Commenced a suit against yor Petrs and obtained Judgment at the last County Court held at Boston, to the *1121value of Two hundred pounds, being for the forfeiture of a Bond of Charterpartie for y° Same Summe; yor Petrs at Same Court Entreated for a Chancery of sd Bond, wherupon The sd County Court did give Judgment, that yor Pet18 pay ye said Dudly & Ting One hundred and Sixty pounds, wherin your Petition18 humbly conceive no Chancery was granted, for, yor Pet18 haveing already paid the sd Dudly & Ting Forty pounds as may appeare endorsed on ye Charterparty, and the whole bond being but Two hundred pounds, & yor Pet18 being adjudged to pay one hundred & sixty pounds more, w°h maketh up the full bond
And Wheras the sd Dudly & Ting did at ye sd County Court exhibit a certain paper therin rendering their pleas & reasons against a Chancery of sd bond, yor Pet18 declare they never had a coppy therof, or time for an answer therto, w°h paper yet remaines although yor Petrs words in their lust defence are forgotten
Your Pet18 humbly conseive that the sd Dudly & Ting are the' reall causes of our Breach of Charterparty, by the great defects in the Sailes & fitting out sd Vessel, for such a voyage as hath been fully proved, for the Vessell was blown off thes Coasts for want of Sailes & Suffitient Rigging, long before the time was out, they being then incapacitated to Supply her, but were forced, (to preserve lives and vessell) to bear up to the first port they could make w°h was Nevis and ther fitt the vessell out of yo1 Pet18 Cargo; And yor Pet18 Judge y* that Clause wherin wee were bound to supply her with Necessaries out of our Cargo, the sd Dudly & Ting allowing our disbursts out of the hyre, was that w°h Cast us; they makeing it their plea, that her time was out before She came to Nevis, and Say wee shall never recover our disbursts w°h as yet wee are uncapable to prove. And wheras wee give bond in our Charterparty for Two hundred pounds for a Vessell not then worth Fifty pounds by any rationall mens value being so old & badly fitted w°h was our great weaknesse. And the vessells being blowne off is to the great advantage of the sd Dudly & Ting, w°h had shee not been blown off Ther had been litle due to them, Considering our great expence in our Continuall keeping sd Vessell in needfull repaire, And yor Petrs are by them threatned to bee farther troubled about her, so that wee know not when wee shall have an end of our troubles. And wheras yor Petrs gave so much hyre per m° for such a vessell, the reasons were because the voyage then was to bee made to Roanoak, & might have been made in a short time, & then vessells were scarce, and also then yo1 Pet18 were but fifth parts, but by Collateral! agreement was Altered.
Therfore yor Pet18 humbly pray yor Honrs that Yee please to Consider our Cace as it is Circumstanced & attended wth All losses, And that yee please to grant yor Chancery upon sd Bond, w°h wee hope your Hon18 will See good to grant it being ye grand reason of our appeale to yor Honrs for Relif in this Cace and yor Pet18 shall ever bee obliged to pray &c Nicho: Paige
John Pole
Dudley and Tyng’s Answer to the Reasons of Appeal is in S. F. 1837.12. The Court of Assistants (Records, i. 155) confirmed the former judgment and assessed 43s costs on the appellants.]