Chancery pleadings: 1717 (Jeffrey v. Darracott)
National Archives ref: C 11 / 2284 / 83
Transcribed by David Carter 2018
Jeffery v Darracott. Bill only.
Plaintiffs: John Jeffrey, merchant of Northam, ...
...John Jeffrey, merchant of Northam, Devon, William Browning, merchant of Northam, William Docton, merchant of Northam (executor of Peter Docton, merchant deceased of Northam) and Joan Vernam (widow and executrix of Richard Vernam, mariner deceased of Northam) and Thomas Smith, merchant of Bideford, Devon.
Defendants: Daniel Darracott, John Hooper, Samuel Brett, John Darracott, George Martin, Peter Wellington, John Drew, Anthony Julliott, Thomas Power, Thomas King and Philip Rashley.
(ref: C 11/2284/83)
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Die Jan 7, 1717
To the right honorable William Lord Cowp[e]r Baron of Wingham, Lord High Chandellor of Great Britain.
Humbly complaining show unto your Lordship y[ou]r orat[or]rs & orat[ri]x John Jeffery of Northam in the county of Devon merch[an]t William Browning of the same merch[an]t William Docton of the same merch[an]t ex[ecuto]r of Peter Docton P? als[o] of the same merch[an]t dec[ease]d Joan Vernam the widow relict & executrix of Richard Vernam late of the same mariner dec[ease]d & Thomas Smith of Bideford in the same county merch[an]t.
That Roger Melhuish of Northam aforesaid esq[uir]e as Lord of the Mannor of Northam did in or about the terme of St Michaell which was in the seaventh year of the reigne of her late Maj[es]ties Queen Anne exhibitt his bill in this honerable court against your orat[or]s John Jeffery William Browning & your orat[or]s estate husband and therein order to ascertain ratifie & establish or impose several customes priviledges prequisites proffitts & advantages or appurtenances claimed by or pretended to by the said Roger Melhuish within the said mannor most of which claimes & pretennces of the said Roger Melhuish being of a publick nature & affecting all persons concerned in trade merchandize in the creek of Appledore & Ports of Barnstaple & Bideford in the County afforesaid and an agreement in writing bearing date the eighteenth day of October 1710 was entred into & subscribed by your orat[or]s & your orators orat[or]s ~estatory and also by George Buck Daniel Darracott Peter Luxton Thomas Power Anthony Julliott John Drew John Hooper Peter Wellington John Darracott junr John Rock George Strange Samuel Brett George Martin & Samuel Dennare all of Bideford aforesaid merch[an]ts and likewise by James Coomer John Darracott & Samuel Pike of Northam aforesaid merch[an]ts John Dean of the same sailmaker & Thomas Ellis Thomas Langdon Thomas King Thomas Vernam junr Philip Rashley Richard Norman Robert Saunders Samuel Hoyle George Follett & Robert Ellis of Northam aforesaid mariners William Dummer then agent for the West India packetts & Christopher Chapple of Fremington in the said county mariner all parties concerned in & interested to oppose the said Roger Melhuishes unjust pretences aforesaid or some of them by which said instruments of agreement so subscribed as aforesaid after a rental made of the suit aforesaid thencemented by the said Roger Melhuish against your orat[or]s [inserted: & effects(?) & ~~~ing & your & oratrix's late husband & the tendances & apparent consequences thereof each & every of the said subscribers did thereby severally promise and agree to be occenntable(?) for & to pay from time to time and at all times unto Giles Cawsey your orat[e]rs then sollicitor & to every or any other sollicitor or sollicotors person or persons that should from time to time be employed by them or the major part of them in the said cause their several & respective shares and proportions that is to say each & every one of them an equal share of and towards all such sume or sumes of money asad been then expended in deficite of the said cause or that should frome time to time become due unto or should be necessary and to be laid or ~?~ expended by the said Giles Cawsey or any other sollicitor or sollicitors person & persons to be employed as aforesaid whether the said sume & sumes of money had or shd(?) be from time to time expended or be advisable or necessary to be expended as aforesaid for on account or by reason of any charges disbursements ffees decrees orders judgements executions sequestrations labour trouble or any other reasonable occasion matter or thing whatsoever in for touching or concerning the cause above mentioned in which instrument so subscribed as aforesaid there is a proviso that no subscriber that was not a ffreeholder of the said parish of Northam should be liable or obliged to contribute or pay any thing for towards the carring(?) concerning or defending any other or suit~~~~~(?) the said Roger Melhuish or any claiming or acting under him for touching or concerning only all or any of the reliefs or herriotts demanded by the said Roger Melhuish witheing the true intent & meaning of the said instrument and of all the subscribers thereunto that such herriotts & reliefes affecting only the ffreeholders aforesaid the same should be disputed by and att the sole charge of the same ffreeholders and no other person and it is also by the said instrument declared to be the true intent & meaning thereof and of all the subscribers thereunto that all causes acc[ti]ons & suites against the said Roger Melhuish or any claiming or acting under him for touching or concerning all every or any of the matters & thinks claimed pretended to and demanded by him in his suit then conceilted(?) sh'd(?) be managed transacted prosecuted carried on and defended from time to time and at all times by with & according to the direction & advise of the subscribers or the major part of them or of such other person or persons as the said subscribers or the major part of them should depute & appoint for that purpose as in and by the said instrument now in the custody of y[ou]r said orat[o]rs & orat[ri]x & ready to be produced to this honerable court relation being thereunto had it doth & may more plainly appear and y[ou]r orat[o]rs & orat[ri]x further show unto your lordship that the said Roger Melhuish took out a com[m]ition(?) out of his honerable court for exammination of witnesses in the cause aforesaid which was executed & above fifty witnesses were examined on behalf of the def[endan]ts therein and a great number of witnesses on behalf of the said Roger Melhuish after which the said Roger Melhuish proceeded to aliening in this hon[era]ble court upon which it was ordered that the said Roger Melhuish should deliver in his demands in writing and that such as the def[endan]ts therein refused to admitt should be ascertained by a trial at law on issues which the master was to settle and that the said Roger Melhuish did accordingly give in his demands and after many notions in this honerable court six issues were joined in trinity terme in this fifth year of this present maj[es]ties reigne that the said Roger Melhuish obtained an order for a special jury and order in the said cause upon which a view was accordingly had by six of the jurors and that the said Roger Melhuish having given notice of trial in the said cause proceeded & entred his second att the assizes held at the castle of Exon and y[ou]r orat[er]s attended the whole assizes with about thirty living witnesses in hopes the said cause would have been tried but the judge being informed of the intricacy length & difficulty of the cause recomended a compromise & arbitration but there not being a majority the subscribers prefered no rule was entred into for that purpose but a rule by consent of counsel on both sides was made that the cause should be tried the first cause at the then next assizes to be held for this county of Devon and your orat[or]s & orat[ri]x further show that the whole management of the cause aforesaid was all along left to your orat[or]s & orat[ri]x [faded] & chiefly to y[ou]r orator Jeffery Browning who attended the same with the ulingtence(?) & diligence & as occasion offered consulted with such of the subscribers at Northam & Bitheford as were willing to be active therein particularly at Bodeford with George Buck esqr the principle merch[an]t in the town and subscriber to the instrument aforesaid that after the death of Giles Cawsey gent first sollicitor in the cause aforesaid which happened on or about the twenty fourth day of June one thousand seaven hundred & twelve your orators testator appointed Charles Cutcliffe gent who had formerly been a clerke to the said Giles Cawsey to be their sollicitor & whereas approved of by all the subscribers nor did over one of the subscribers object to his being sollicitor shew any dislike thereat or propose any other neither did they any or either of them at any time object to y[ou]r orat[or]s & orat[ri]x's testator taking upon them the management of the cause as aforesaid and y[ou]r orat[or]s & orat[ri]x further show unto your lo[rdshi]pp that on or about the moneth of July one thousand seaven hundred & sixteen proposalls were made by the aforesaid Roger Melhuish for composing the matters in difference between him & your orat[or]s & orat[ri]x's testator and the same was proposed to be referred to John Benson merch[an]t on the part of the said Roger Melhuish and the aforesaid George Buck one of the subscribers on the part of your orat[or]s & orat[ri]x's testator and that no objective might be made to the said submission a majority of the said subscribers by a note and under their hands dated the twentieth day of July seaventeen hundred & sixteen did consent & agree that your orators the def[endan]ts & your orat[or]s testator should forthwith enter into a bond of award to the said Roger Melhuish in the penalty of one thousand pounds conditioned for the performance of such award as the said George Buck & John Benson sh[oul]d make touching the matters in controversie between the said Roger Melhuish & your orat[or]s & orat[ri]x's testator as by the said note in writing now in the custody of your orat[or]s & orat[ri]x and ready to be produced to this hon[er]able court with more plainly appear and that in pursuance to the said consent bonds of award were accordingly entred into and an award made accordingly and your orat[or]s & orat[ri]x further show that in defence of the suit so brought as aforesaid by the said Roger Melhuish (including only ten pounds for the great labour & expences of your orat[o]r John Jeffery) there has been necessarily laid out & expended by your orat[or]s & your orat[ri]x & orat[ri]x's testator the sume of six hundred forty five pounds fourteen shillings & eighty pence and your orat[or]s & orat[ri]x show that of the persons who subscribed the instrument aforesaid William Dummer has left the Kingdome and is gone into parts beyond the seas and Samuel Dennard & Christopher Chapple are dead insolvent so that the whole charge must be borne by the rest of the subscribers and your orat[or]s & orat[ri]x doe show that since the makeing the award aforesaid and their computing the costs & charges they have been att and expended as aforesaid in defending the said suit your orat[or]s & orat[ri]x sent a notice in writeing to each of the subscribers appointing a time & place in the town of Bideford forsaid person to come & view the accounts of the charges & costs expended in defence of the said suit & what their several & respective shares did amount unto well hoping that each of the subscribers could have contentedly paid their respective shares or openly & candidly made their objections if they had any just ones to make there unto. But now so it is may it please your lo[rdshi]pp that the said Daniel Darracott John Darracott John Hooper Samuel Brett George Martin Peter Wellington John Drew Anthony Julliott Thomas Power Thomas King Philip Rashley having entred into a combination & confedoracy among themselves and to and with divers other persons at present unknown to your orat[or]s & orat[ri]x whose names when discovered your orat[or]s & orat[ri]x doe pray may be here incerted with apt words to charge them doe utterly refuse to pay any part of the costs & charges of defending the suit aforesaid under pretence that they never subscribed any instrument whatsoever for that purpose . . .
. . . but att other times confess they did signe some instrument but then pretend the~~areno? wise obliged thereby to pay any part or share of the charges aforesaid because no agreement was to be made with the said Roger Melhuish without the consent of every person subscribing the said instrument nor any proceedings whatsoever had or made without the express privity consent or approbation of every particular subscriber tho' the said confederates well know the contrary and that as your orat[or]s & orat]ri]x doe charge that it isues & is one of the articles of the aforesaid instrument that the consent of the majority (without which your orat[or]s & orat]ri]x's testator did nothing) should give the rest & the confederates have often times been told so much & never made any objection whatsoever to the management of the cause aforesaid or to any person concerned therein or any expences relating thereto till suite they were called on to pay in their several equal shares & proportions according to the purport of their agreement aforesaid and y[ou]r orat[or]s & orat]ri]x doe charge that since they gave the confederates notice to meet and inspect the accounts aforesaid in order to prevent any dispute at law they gave each of the said confederates notice in writeing to meet at a time & place in Bideford aforesaid to give in any objections they had to make against their paying an equal share of charges of defending the suit aforesaid that the same might have been amicably adjusted at which time & place several of the confederates (viz) Peter Wellington John Drew Anthony Julliett Samuel Brett appeared but under the pretenes aforesaid utterly refused to pay any sum of money whatsoever towards the costs & charges of defending the aforesaid suit all which goings & doings of the said confederates are contrary to equity & all good conscience & lend to the apparent wrong & injury of y[ou]r orat[or]s & orat]ri]x. On tender consideration of the premisses and for as much as your orat[or]s & orat]ri]x are remediless in and by the strict rules of the com[m]on law & not able to make out the truth of their case but by the oaths of the said confederates y[ou]r orat[or]s & orat]ri]x witnesses who could prove the aforesaid allegations being either dead or gone into places remote and unknown to you]r orat[or]s & orat]ri]x so that they cannot have the benefitt of their testimony to the there fore that the said Daniel Darracott John Darracott John Hooper Samuel Brett George Martin Peter Wellington John Drew Anthony Julliott Thomas Power Thomas King Philip Rashley and the rest of the confederettes when discovered may upon their corporal oathes in answer to this bill sett forth the truth of all & singular the premises and that as fully as if here again repted(?) and interrogated and that the said Daniel Darracott John Darracott John Hooper Samuel Brett George Martin Peter Wellington John Drew Anthony Julliott Thomas Power Thomas King Philip Rashley may severally sett forth & discover whether such suit as aforesaid was not comenced & prosecuted in this hone[ra]ble court by the aforesaid Roger Melhuish against you orat[o]rs Jeffery & Browning & orat[ri]xes testator and such proceedings had thereupon as is herein before sett forth and whether they did not each of them promise & agree to pay an equall share of the charges of defending the said suit & signe such instrument as aforesaid for that purpose or any other and what instrument and with what person & persons by name & whether William Dummer who signed the said instrument has not left the kingdom and does now reside in parts beyond the seas is alive & whether Samuel Dennard & Christopher Chapple are not both dead insolvent and whether Dennard was not declared a bankrupt long before his death & whether any distribution has since been made of his effects or is like to be and how much they severally believe in their conscience Dennards effects will extend to pay in the pound and may also severally lett forth & discover whether the whole management of the suit aforesaid brought by the said Roger Melhuish against y[ou]r orat[or]s Jeffery & Browning & your orat]ri]x's testator was not all along by com[m]on consent left to the management of your orat[or]s & orat]ri]x's testator & chiefly to y[ou]r orat[or]s Jeffery & Browning and whether they doe not believe in their conscience that all imaginable care was taken in defending the said suit by your orat[or]s & orat]ri]x's testator and whether any of the said confederates and who by name did ever protest or make any objection or show any dislike at any time when in what manner and in whose presence against any thing that was done or caused to be done or any person that was imployed as sollicitor or otherwise by your orat[or]s & orat]ri]x's testator in defending the suit aforesaid or compromising the same till since the award was made as aforesaid and may also severally sett forth & discover whether any of the confederates and who by name ever shewed any dislike to or disapprobation of are fferente(?) till since the award was made & when and in what manner and whether they doe believe or not that the said award was fairly and uprightly made and whether they ever heard or doe believe that any fraud or covin was used in making of the same and whether they have not heard & doe believe that a major part of the persons who subscribed the instrument aforesaid did by such note as aforesaid consent to the compromise & arbitration aforesaid & wether such note has not been shown or offered to be showen to them and whether by the instrument aforesaid the act of the majority was not to bind the rest and may also severaly lett forth discover whether they doe not believe that there was necessarily expended in defence of the abovesaid suit by your orat[or]s & & your orat[or]s & orat]ri]x's testator the sume of six hundred forty five pounds fourteen shillings & eighty pence & any other & what sume of money and whether they had not such notice of time & place as aforesaid to come & inspect the account of the said disbursements and charges and whether they were not desired by a second note in writing as aforesaid to make any objection if they had any to the said disbursement and whether your orat[or]s & orat]ri]x did not by such second note offer to leave any matter of objection that should be made by the confederates or either of them have an amicable composure and whether the said Peter Wellington Samuel Brett Anthony Julliot & John Drew did not appear on such second notice and utterly refuse to pay one farthing towards the expenses of the suit aforesaid and that he said confederates may each of them be compelled to pay a share & proportion of the charges & costs of defending & composing the suit aforesaid brought by the said Roger Melhuish against your orat[or]s & orat]ri]x's testator according to the purport intent & true meaning of the instrument aforesaid and y[ou]r orat[or]s & orat]ri]x's here[?blotted] such relief in the premises as shall be agreeable to equity & justice may it please your Lo[rdshi]pp the premises considered to grant unto your orat[or]s & orat]ri]x his Maj[es]ties most gratious writt or writts of s[ub]p[oen]a to be directed to the said James Darracott John Darracott John Hooper Samuel Brett George Martin Peter Wellington John Drew Anthony Julliott Thomas Power Thomas King & Philip Rashley and the rest of the confederates when discovered thereby com[m]anding them and every of them at a certain day & under a certain pain therein to be limited personally to be & appeare before your Lo[rdshi]pp in this Hon[oura]ble Court to answer all & singler the premises and further to obey abide observe performe fulfill & keep such order & decree therein as to your Lo[rdshi]pp shall seem meet and your orat[or]s & orat]ri]x shall ever pray etc.
Signed: Hen. Walrond.
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