In re Hodgson

At a Gen1 Councill of his Majestys Colony of Rhode Island and Providence Plantations in New England; conveen’d by the Govr warrant this 28th Day December 1716. Present Sam11 Cranston Esqr Govr John Wanton Nath11 Coddington James Brown George Cornell Sam1 Clarke and Cap4 Jn° Eldred Ass4 Weston Clarke Atty Gener11 Rich4 Ward Secre4

To the Honb,e Samuel Cranston Judge Govr and The Honble the Assistants of his Majestys Colony of Rhode Island- etc.

The Petition of Dan11 Hodgson of Newp4 in the Colony afores4 Marriner late Master of the Ship John of London the 20th Day of December 1716. Humbly Sheweth That your Petitioner on the 9th Day of Aprill 1713 did by the Order and with the Consent and Approbation of Peter Ford of the Parish of s4 Mary Magdalene Bermondsey in London Merch4 and others Owners of the Ship John; enter into Charter Party with one Moses Anstelí of London Merch4 and did thereby Grant and Lett the said Ship to s4 Anstell on A Voyage to be perform’d from sd Port of London to the Island of Fyall and thence to Rhode Island and thence to Antego or other Island in the West Indies and thence back to London (as per s4 Charter party and other Evidences ready to be produced to Your Honrs will Appear) and Your Petitioner saith that he did proceed in s4 ship from s4 Port of London to s4 Fyall and thence to Rhode Island; and thence by order of Richard Mew of s4 Rhode Island Merch4 Factor to s4 Moses Anstell sail’d out for the Island Antego But the s4 Ship Proving very Leaky and Insufficient to proceed was *104forced To return to Rhode Island again where s4 Ship by five Skilfull persons Legally Appointed and Sworn to survey the same was reported in part Rotten and Insufficient to proceed on sa Voyage (as by their report ready to be produced to your Honrs may Appear). Whereupon your Petitioner was sued by the afores4 Mew upon s4 Charter Party for one thousand Pounds Sterling money of England penalty of s4 Charter party for not proceeding to Antego According to s4 Charter party; first in the Court of Admiralty; and afterwards in three succeeding Actions att common Law which were Abated by s4 Courts for faults therein as per the Records of s4 Courts may Appear Notwithstanding which your Petitioner is still Lyable and Expects to be sued on s4 Charterparty.

And further sheweth that Your Petitioner was lately Sued in his Majestys Court of Admiralty in Newp* before the Hon,]le John Menzies Esqr Judge of s4 Court by Nathaniel Byfield of Bristol in the Province of the Massachusets Bay Esqr as Attorney to and for and upon Account of the afores4 Peter Ford and one John Tompson of London Merch* and Martha Tompkins Administratrix to Thomas Thompkins deceas’d (as per Libell in s4 Court may Appear) naming themselves part Owners of the Ship John Galley otherwise the Ship John of London for their parts of s4 Ship etc. and of the Freights and Profits of s4 Ship in s4 Voyage from London to Fyall and thence to Rhode Island afores4. In which suit your Petitioner did put in his plea before the s4 Judge that he ought not to be compelled by the decree of s4 Court to render to said Byfield any part of the produce of s4 Ship or of the freight or Profits of s4 Voyage without Security from s4 Byfield to Endemnify and save harmless and to pay to your Petitioner their proportionable parts of such Costs and Damages that should hereafter be Recovered or Your Petitioner put To by reason of any future suits that should be brought by the afores4 Anstell agst Your Petitioner for not proceeding in s4 Ship from Rhode Island to Antego Afores4 the same being Evidently occasion’d through the rottenness and Defect of s4 Ship and not through any fault or Neglect of Your Petitioner as was proved before the s4 Judge. Yet notwithstanding the s4 Judge did on the 17th day of this Instant December decree amongs’t other things that Your Petitioner shou’d pay to the afores4 Peter Ford, John Tompson, and Martha Tompkins their shares or parts of one hundred and ninety one pounds nineteen Shillings and one penny ballance due for freight and price of s4 Ship Sold; without decreeing any Security to your Petitioner as afores4 by plea desired. By which Decree your Petitioner will have all means to Support the charge of Defending himselfe against said Anstell on Suit on s4 Charterparty taken Away and Your Petitioner Exposed To utter ruine which Your petitioner humbly concieves is contrary to Law and Equity. And therefore and for his other reasons in his former Petition presented to your Honrs the eighth day of this Instant December.

Your Petitioner humbly prays that as Your Honrs are the Great conserva*105tors of the Laws and of the rights and Liberty’s of his Majestys Subjects in this Colony that A Prohibition may be Granted Requiring the afores4 Honbl° John Menzies Esqr Judge of s4 Court and Mr John Coddington Deputy Register of sd Court; that all proceedings on s4 Decree be stayed and that no process nor Execution be given out agst your Petitioner there upon untill reasonable Security be given to your Petitioner by the Afores4 Nathaniel Byfield or By the Afores4 Peter Ford John Tompson and Martha Tompkins in proportion according to their Several parts of s4 Ship as Decreed to Save your Petitioner Harmless and to pay their proportionable parts of such Costs and Damages as shall Accrue to Your Petitioner by any future suits that shall be brought by the Afores4 Moses Anstell on s4 Charter party for your Petitioners not proceeding from Rhode Island to Antego as Afores4 And also that Your Petitioner be secured against all persons hereafter lawfully claiming the parts and profits of sd Ship for which said Byfield hath before s4 Judge obtain’d A Decree. And your petitioner as in duty bound shall Ever pray etc.

Dan11 Hodgson

Colony of Rhode Island etc. Upon the prayer of the Above petitioner the Gen11 Councill conveened as Aboves4 in order to Advise and Consider what would be proper to be done in answer to the prayer of s4 petitioner as is set forth in his s4 Petition. And upon the Perusall of the proceedings of the several Courts in the Common and Civil Law against the Charter-party and Secondly by the owners for the s4 Ship and her freight all which is fully set forth by the Several Judgemts and Decrees which was produced before us; as well as the Petitioners Councill who was heard as To matter of Law etc.

And upon mature consideration of the whole wee are of opinion that it is not in the Authority of this Councill to Grant forth any Prohibition that may be finall to require the HonbIe John Menzies Esqr Judge of the Court of Admiralty etc. to stay any proceedings on his Decree past on the 17th Instant concluding that matter is Chiefly cognizable before the Gen11 Assembly who is the Supream Court of this Colony and To whom all other Inferior Courts are Obliged To Answer for any misadministration or Erroneous Judgem4 etc. notwithstanding which wee presume that this Councill hath sufficient Authority to Grant forth a Prohibition to stop any Execution by Virtue of the Afores4 Decree till the next sessions of Assembly if the Petitioner doth pray it so as the plu or their Attorney may be notified to Appear at the Assembly to Answer to any Matter or Anything that may be Alleadged by the Petitioner to Evade the Decree of The Honble Judge afores4 Always Provided that the Petitioner do Enter into Double Bond with suretys of the sum and Costs Awarded agst him in the Decree; to prosicute his Gompl4 at sd Assembly and To Answer all costs and Damages that may be Awarded agst him if any such shall be

*106And whereas the s4 Petitioner Daniel Hodgson hath presented Mr Charles Lowther and Mr Joseph Borden as suretys for his Performance of what is set forth for his prosecution afores4 the Councill Do Accept of the s4 suretys and Do order the Secretary upon their signing the Bond forthwith in the Name of this Councill to Issue forth a Prohibition requiring the Afores4 Judge Menzies Esqr and Mr John Coddington Deputy Register of s4 Court of Admiralty to stay any proceedings on the Afores4 Decree and that no process or Execution be given out thereupon untill the Matter be heard and Determined by the Gen11 Assembly as afores4 The s4 Prohibition to be del4 To Mr John Coddington Deputy Register of s4 Court and The Secretary is hereby Directed and ordered to send a Copy of the s4 Petition and the Councill’s order thereon to Coll Nathaniel Byfield Attorney to the plts and To' notify him of the sitting of the Assembly so as he shall Appeare if he think fit; and The Secretary is hereby ordered to Register the afores4 Petition and the Councills order thereon.

Done in Councill Rich4 Ward Secrety

[Records of the Governor and Council, p. 8s]

To the HoniIe John Menzies Esqr Judge of the Court of Admiralty for the Colony of Rhode Island and Providence plantations in New England etc. and To Mr John Coddington Deputy Register of said Court Greeting

Whereas Daniel Hodgson of Newp1 in the Colony aboves4 Marrinr on the 28th of this Instant December Exhibited A petition before the Honble Samuel Cranston Esq1' Govr and the Councill of s4 Colony wherein he set forth the Grievance and unreasonableness of A Decree given agsl him by the s4 John Menzies Esqr Judge of s4 Court of Admiralty on the 17th of this Instant December At The suit of Peter Ford John Thompson and Martha Tompkins Administratrix of Thomas Tompkins Deceas4 the which petition being duly considered the Honrd Govr and Councill did order the Secretary of s4 Colony to grant forth a prohibition to stop and hinder Any Execution from going forth upon s4 Decree out of s4 Court of Admiralty untill the next Gen11 Court of Assembly of this Colony; have heard s4 Decree and Petition and given forth their Judgem1 thereon.

These are therefore in his Majestys Name George by the Grace of God King over Great Brittain France and Ireland Defender of the Faith etc. to prohibit and forbid YOU John Menzies Esqr Judge of s4 Court of Admiralty and YOU M1' John Coddington Deputy Register of s4 Court to Issue forthe any Execution or process agsl the afores4 Daniel Hodgson Marrinr upon the afores4 Decree past agst him on the 17th of this Inst1 December; Untill the Gen11 Court of Assembly of this his Majestys Colony of Rhode Island etc. have heard the afores4 Decree and Compl1 theron and given forth their Decree on the same.

By order of the Govr and Councill of his Majestys Colony aboves4 I *107have given forth this Prohibition under my hand and Councill Seal this 3irst Day of December 1716

Rich4 Ward Secret5,

Registred Rich4 Ward Secretary