Shilcock v. Banister

And the Respondent comes into Court, and for Plea saith the Matters and Things herein contain4 are not within the Jurisdiction of this HonbIe Court, for that a special Contract was made at Land within the Town of Newport in the County of Newport the Twenty Sixth day of March A. D. 1743; between the Proponent and the respondent who is only part owner of sa ship and sa contract was then and there reduced to writing, by Virtue whereof the Proponent entered on Board the Ship within Mentioned, and *244Proceeded the Voyage etc. and therefore the same is cognizable in the Kings Court only and of this pray Judgement

J. Honyman Att. pro Resp*

Which Plea being overruled the said Respondent farther pleads and says the Libel afores4 ought to be quashed

i* for that James Vaughan of the City of London in the Kingdom of Great Britain Merch1 are joint Owners of the Ship within named and therefore the Libel afores4 ought to have been brought agst the s4 James as well as the Respondent and of this etc.

2d For that the Proponent doth not say at what Place the Contract afores4 was made nor the place from which s4 Ship proceeded to South Carolina both of which are things absolutely necessary and of this etc.

3d For that the Proponent says in his Libel the Ship was sold in London and nevertheless pretends he was discharged from s4 Ship in Newport on the 18th Day of October 1743 and of this etc.

And the pleas afores4 being also over ruled the Respondent for Plea says that true it is the Dep1 did proceed a Voyage in the s4 Ship to South Carolina from thence to London afors4 Where he was discharged on or about the twenty second Day of July A D 1743 Where he reced Seven pounds Sterling Which with the Wages advanced before sailing and the Moneys the Proponant hath otherwise reced is the full of the proponents Wages Says he Oweth the Proponant nothing in manner and form as in the Libel is set forth and thereupon he prays to be dismist with Costs

J Honyman

Mr Samuel Banister being duly Sworn in Open Court by the Name of the Ever Living God Says that Thomas Shilcock, was Shipd Some time before he was Enterd in the Portage Bills but how long he could not Tell, but he knew s4 Shilcock was Absent and thereupon Advisd Mr John Banister to Ship another Mate in his Room

John Riders being duly Sworn in Open Court by the Name of the Ever Living God Says; That on or about the. fifteenth Day of March last he undertook to fix the Rigging and Sails of the Ship Three Sisters Thomas Mackfarland Master and was at the Sail loft and aboard the s4 Ship from that Time till about Ten or Eleven Days, That Once or Twice in that Time he hath Seen Thos Shillcock on board s4 Vessel but does not know of his doing any work till about the 26th or 27th of March He the said Shillcock having business of his own to do as the Deponent understood

I shall first Mention Some Pleas made by the Respondent the first to the Jurisdiction of the Court on Account of a Contract the Appellant Rec4 *245wch was A Memorandam to Continue him in Wages if the Ship was Sold Untill his Arrival at Newport the Second was that James Vaughan of the City of London was an Owner and not mentioned in the Lible although the Respondent Ship4 the Appellant and gave him the Memorandom 01 Contract for his Wages if the Ship was Sold Untill his Return to Newport the Next was the place from whence he Saild was left out in the Lible all wch Pleas I Overrule and always Shall all Manner of Triffling Evasions to throw the Charges on any poor man when I think his Case is Just as to the Merits of the Cause the Respondent Pleaded that what he Rec4 here Advance Wages and what he had Receiv4 in London was the Ballance Due to him and he should have Sued for the Memorandom or Contract by itself but I find what Advanc4 Wages he had Rec4 and what he Rec4 in London was not the full of the Wages Due to him Even when the ship was Sold so I Order the Respondent Jn° Bannister Merch* to pay to Tho Shillecock Marriner his Wages from the time he was Ship4 being the 26 of March as Appears by the Portage Bill until he was Discharge at Newport being Oct 18th the Amount of woh is twenty three Pounds ush and four pence Sterling but to be Subducted out of it what his Advance Wages was before he Saild being Sixteen pounds this Currency and Seven pounds Sterling he Rec4 in England and likewise twelve pounds this Currency part paid in his Absence and part he Rec4 after he came home the Whole three Sums Amounting to twelve pounds one shilling and six pence Sterling So Remains Due to Tho: Shillecock Mariner Eleven pounds Nine Shillings and 10 pence Sterling woh I Order the s4 Jno Bannister to pay him and likewise to pay the Cost of this Court.