Sheafe v. Palmer , 2 Rec. Co. Ct. 829 ( 1753 )

Sampson Sheafe of Boston Mercht plaint. agt Tho: Palmer now or late Master of the Natch Diligence Deft in an action of the case for not delivering unto the sd Sampson Sheafe in good order and wel conditioned according to the Obligation of his bill of loading a parcell of English goods or Merchandizes loaden onboard the sd Natch at London by Philip French and Sampson Sheafe and consigned to the sd Sheafe; but contrarily the sd goods have recd much damage to the value of ninety two pounds ten Shillings in mony as may appeare by the Return of mr Eliakim Hutchinson and John Wing persons mutually chosen by the sd Palmer and Sheafe to veiw and judge of the sd damage with other due damages accord. to attachmt datd July. 13° 1676. [457]. . . . The Jury . . . found for the Defendt costs of Court. The plaint, appealed from this Judgemt unto the next Court of Assists and himselfe principall in ten pounds, Joseph Rock and John Saffin Sureties in £.5. apeice acknowledged themselves respectively bound ... on condition the sd Sampson Sheafe should prosecute his appeale . . .

[S. F. 1627.2

To the Honnord County Court now assembled Sampson Sheafe Plaintiffe against Thomas Palmer Defendt humbly declareth

That whereas the plaintiffe & Phillip French did in London Ship vpon the ketch Dilligence of Boston, master whereof Thomas Palmer, (Defendt) bound for Boston in New England, Six bales of Merchandize, in good order & welconditioned, which in like good order and welconditioned was to be deliuered at the aforesaid port of Boston to the Sd Sheafe the Plaintiffe, or in his absence to mr Peter Sergeant as by bill of loading bearing date 22d March 1676/7 may fully appear and whereas by the defect or insufficiency of the Said ketch or Negligence of the Said master & Seamen, the Said goods are very much damnified, Even to the apprehension of the Plaintiffe the Summe of One hundred & forty Pounds, yet Such was the desire of the Plaint & as he deemed, the desire of the Defendt also to make an ainicable Conclusion, of the businesse, to which purpose they both mutually Chose mr Eliakim Hutchinson & mr John Winge to view Judg & determine the dammage, the Plaintiffe hath Sustained in the Said goods who accordingly having viewed the goods & Concidered the premises & do Judge the dammage, to be Ninety two Pounds Tenn Shillings as by their award may appeare, to which the Plaint Submitts, but the Defendt refuseth to Stand to their award, & pay to the plaintiffe the sd Ninety two Pounds Tenn Shillings, pretending now it is the danger of the Sea, yet hath made no protest by the public notary according to Law, Nor hath the Said ketch receiued, any dammage in her hull Sailes or Riggin Spending her mast, or any such thinge Coming by the violence of the Sea, but only Common ware & tare & therefore the Defendt ought to beare the dammage according to the law folio 97: Title marritine affaires, Sect 16. which Saith any ship [or] Vessel at Sea receauing dammage by the masters or marriners negligence, yet bringeth the masters goods home, & deliuereth them according to bills of ladinge, he shall receiue his fraight, but if the goods be damnified, the master or marriners shall make good the dammage¹ the benefit of which law the Plaintiffe humbly Craveth, who Subscribes himselfe

Yor honnors most humble Servant

Sampson Sheafe

Vera Copia attestr Jsa Addington Cler

S. P. 1627.3

Robert Tresteene aged: fifty three yeares or thereabouts having bene Employed in Sea affaires, the Space of Thirty yeares, and being Entertained passenger, in the ketch Dilligence Thomas Palmer master, from old England, to New England On the Sixteenth day of Aprill 1677 there happened the dreadfullest Storme that ever J was in Since J was borne, in So much that we did not Expect to Saue, either the vessell or our lives And J do hereby Truly affirme that the men, belonging to the Said ketch, did for the most of the time, the Storme Continued, Stand vp to the knees, and Sometimes vp to the waste, in water at the Pumpe, with very much Jeapardy to be washed ouer board every moment, with many Such Eminent dangers of death, Also J doe affirme that it was my desire, that the Said Commandr would Cutt the mast by the board, and to Scudd before the winde & Sea hoping by Gods providence, thereby to Saue the vessell, as also our lives, which at that time J saw no ground probabillity or reason to bee Safely kept otherwise, But the master replied, he durst not Scudd for want of Searoome, & further this Deponent Saith not

Taken vpon Oath June 27th 1677

Before me Edwar Tyng ass[ist]

Captain Palmer was sustained by the Court of Assistants (Records, i. 98), and owner Sheafe had 9s 4d additional costs to pay.]

1 The General Laws of the Massachusetts Colony (1672), pp. 97-8.