they are bound to repay which the Act directs to be done by Court of Common Pleas in Cases where any Penalties are recovered And therefore directs that all those Bonds shall be Sued in that Court 13. THE Court of Common Pleas cannot own a Jurisdiction in Case of Appeal from the Court of Exchequer because it is not provided for by a special Proviso in the Act which constitutes that Court especially because the Court of Exchequer was not then Establisht but hath been since Erected with a superiority over that of the Common Pleas. 14. IF Bonds of this Nature should be adjudged in construction of Law to Oblige the Obligor for the whole penalty for every little or single Breach thereof then will the whole Island be left for it will ruin all Trade and Comerce with them from all parts of the World BECAUSE no prudent Man will at any time after become bound with any Master of a Ship in such Penalty and under such Conditions when he shall find that for the smallest of Crimes committed the same shall be declared Forfeited to the King FOR these and other reasons they pray'd the Informations might abate THE causes were continued till next Court. Mar. 1. 83 4. THE Plea in abatement was over-ruled Mar. 13. 83 4. and the Defendants ordered to plead next Court or Judgment to be awarded THEY all three Pleaded and in each of their Pleas Mar. 22. 83 4. recited the Act which impowers the Governour to take such Bonds and averr'd that the King ought not to have Judgment For that by the said Act it is Enacted that whatsoever person or persons shall carry off in his Ship Vessel or Boat any Freeman Servant or Slave that have resided there without a Ticket for the same that in such case such persons bond shall be assigned to such person or persons as should be thereby prejudiced to be by them sued and the Penalty thereof recovered out of which satisfaction to be made to the person prejudiced with his Charge and Damages and they Averr'd that such Bond is as well assignable to the King if need were as to any other person whatsoever and affirm that no such Assignment was ever made as also that our Lord the King was not damnified by carrying off Hanson in the said Ship in manner and form as in the Information was set forth and of this they and the Attorney General put themselves upon their Country THE Attorney General by Protestation Mar. 29. 84. not allowing the Pleas to be true alledged that they were all of them insufficient in Law to discharge the Defendants wherefore and for that there was contained in them double matter he demurr'd in Law and pray'd Judgment and for Cause of Demurrer said THAT the Defendants alledged in their Plea That as to any thing contrary to the peace of the King or in Contempt of the Law they are not Guilty and of that put themselves on the Country so did the Attorney General who FURTHER saith that the Defendants as to the Forfeiture of the 2000 l. Bond of which he pray'd Judgment for the King had pleaded the Act directing the taking such Bonds and all the special Matters set forth in their Plea above written wherein there is double matter contained therefore and for other reasons to be shown Ore Tenus he pray'd Judgment of the said 2000 l. for the King against each of them THE same day the Defendants were obliged to joyn in Demurrer JUDGMENT was given of 2000 l. a piece against Young Apr. 10. 84. Haviland and Fowler in all for 6000 l. for Relief against which they Exhibited their Bill into the Chancery to which Mr. Attorney General Demurr'd and the Demurrer allow'd by the Court. YOVNG finding himself and Sureties thus prosecuted he when he came back to Barbadoes made over to Haviland and Fowler a Bond of 5000 l. penalty which Hanson had in London voluntarily given him to save him harmless from any Damage that might arise by reason of his bringing him to England NO sooner had they that Bond than to secure themselves they put it in Suit in the Court of Exchequer where tho Hanson was in England that Court forc't his Attornies to appear for him howbeit their Letters of Attorney had been absolutely revok't above twelve Months before and notwithstanding a sufficient Plea was by them put in on Hansons behalf yet was Judgment most irrigularly given against him for the whole Penalty of that Bond and Copies of the Proceedings thereupon are denied him to this day HANSON being in London and hearing of these Proceedings just as he was going over and after his goods and all things were on Board in order to his Voyage resolved to stay here and prosecute his Appeals for which purpose he took all his Cloaths on Shore and suffer'd the said Ship to fall into the Downs but advising with Sir Richard's Friend who was present when the Agreement aforesaid was made and who afterward very kindly had carried Hanson to kiss His Majesties Hand before his Departure he perswaded him by all means to proceed on his Voyage assuring him that he was consident that when Sir Richard should arrive on the Island all proceedings against him would be stopt and his Promise and Undertaking be made good and gave him a Letter to Sir Richard to press the same upon which he followed the Ship into the Downs and went to Barbodoes where when he came and waited on Sir Richard he was acquainted with all the matters aforesaid at large and told that he had given account thereof to his Majesty and sent to know his Royal Pleasure therein But what Letter he writ or whether he gave account of the agreement aforesaid between them or of the nature of the Law that directs the taking Bonds or the destruction that it would be to the Navigation of the Island if such a President were made and led in example he knows not However all Proceedings were stopt until in return of Sir Richard's Letter an Order of Council was sent to Levy 2000 l. upon the Judgment obtained on Young's Bond the same to be paid to Edwin Steed Esquire and he to return the same into the Exchequer here WHICH Order was made without the said Hansons being heard or any on his behalf and grounded on a Report made by his Majesties Attorney General whereby he declared his Opinion to be that Young's Bond was forfeited to the King by the bringing Hanson into England and by the wording of the Order it seems to be grounded upon Hanson's having given security to Young to save him harmless NO sooner did this Order arrive on the Island than Hanson was sent for told thereof and required to pay the Money which was impossible for him to do on a sudden such a Sum not being to be had on the Island in a short time However he to show his Duty to the King and readiness to comply with his Order in
THE CASE OF Samuel Hanson Merchant and Planter in BARBADOES Humbly offer'd and submitted to the Kings Most Excellent Majesty's Consideration and Royal Determination in Council THE said Hanson for 24 Years last past hath been an Inhabitant in Barbadoes lived there under 14 several Governours and Lieutenant-Governours without having had the least Controversie or Contest with any one of them he always behaved himself as a Loyal Subject to his King and Dutiful Son of the Church paying all the submission and respect imaginable to the Government he lived under Neither had he in all that time any considerable Quarrel Controversie or Contest with any of the Inhabitants of the same Island except with one Gentleman who having done him some Injury of which he held himself obliged to acquaint the Assembly They espousing his Interest and doing him Right he conceived thereupon such Anger as put him upon contriving how to be even with him To which purpose falling in with Sir Richard Dutton Knt. at his first Arrival upon the said Island he possest him with prejudice against him and prevailed to have him so used as that he was forc'd in the Year 1682. to exhibit Three Appeals to His late Majesty of ever Glorious Memory in Council to be relieved against the Severity of Sir Richard's Proceedings and for Reversal of the Judgments by him pronounced against him THE First For Reversing a Judgment pronounc'd contrary to Law and constant Usage by Sir Richard in the Court of Grand Sessions without the Concurrence or Consent of the Court whereby he was Fin'd 150 l. Sterl THE Second was a Complaint of his being illegally committed to Prison and detain'd there 5 Weeks without Cause praying Damages for the same THE Third For an undue Seizure Condemnation and Sale of a Ship of his for 250 l. which cost him 1100 l. the Year before The Case upon the 1st Appeal was as followeth ONE Anthony Rodrigus having 12 Iron Guns 1679 worth about 4 l. a piece lying on Gun-Wharf in Bridg Town which Wharf belonged to Mr. Scut and Kendal Merchants and managed by one John Burston their Agent He the said John Burston SOLD the said Guns in the Presence of many Witnesses to Hanson Mar. 25. 79. who the same day in the Presence of several Persons caused 6 of them to be publickly in the day time ship'd on Board the Ship Nathaniel bound for New-England in order to their being transported thither RODRIGVS missing these Guns Mar. 26. 79. complain'd that they were stollen and obtained a Warrant to search for them and if found to bring back the same Hanson hearing of this immediately caused them to be fetch'd on shore and brought to the place from whence they were removed and defrayed the Charge thereof with which the said Rodrigus being well satisfied did often desire Sir Jonathan Atkins the then Governour that no Person might receive Trouble or be prosecuted for removing the same notwithstanding whereof Sir Jonathin Atkins being called home and Sir Richard Dutton made Governour WHICH was two Years and a half after the fact committed Aug. 16. 81. an Indictment was preferred by the Attorney General at the then General Sessions against Hanson and Burston The purport whereof was for that they fraudulently and deceitfully designing Gain to themselves had entred upon Gun Wharf and carried away 14 great Guns of the Kings 14 of of the Islands and 14 belonging to Persons unknown worth in all 150 l. ALL Evidence for the King being heard and very material for Hanson and Burstod refused on pretence they could not be Examined against his Majesty the Jury notwithstanding the Information found Hanson and Burston Guilty only of making a fraudulent Bargain in the buying and selling 12 Guns belonging to Rodrigus a Jew and shipping them off as aforesaid HANSON immediately moved in Arrest of Judgment and offered sufficient Reasons in Law for granting the same Which were as followeth FIRST That he was not found Guilty of the Fraud charged by the Indictment to have been by him committed against the King or the Island and no Person appeared to prosecute him for the pretended fraud committed against Rodrigus SECONDLY That the Indictments was for 42. great Guns and the Verdict finds only a fraudulent buying and selling of 12 Guns and mentions not whether great or small therefore no certain Judgment could be given on that Verdict NOTWITHSTANDING whereof Sir Richard being newly come to the Island consequently unacquainted with the Laws thereof proceeded himself against the Law and constant Usage of the Island without the Concurrence or Consent of His Majesties Council Judges and Justices then present to fine Hanson 150 l. and Burston 100 l. in all 250 for shipping of 6 of the 12 Guns aforesaid valued by the Owner but at 4 l. a piece when as the Indictment valued the 42 Guns therein mentioned but at 150 l. in all THE General Assembly humbly addrest to Sir Richard Oct. 5. 81. stating therein the Law of the Island to be That no Fine could be imposed on any Criminal by any Governour without the Concurrence of the Council Judges and Justices present at his Tryal pray'd therefore a stay of Execution against Hanson and Burston and a Preservation of their Laws Notwithstanding which A WRIT was awarded out of the Exchequer to summon Hanson to appear the 18th of that Month Oct. 12. 81. and shew cause why Execution should not issue against him With which HANSON being served Oct. 14. 81. HE appeared and pray'd time to plead in Abatement of the Scire Facias Octo. 18. 81. and had Ten days granted him for that purpose HE put in a sufficient Plea in Law for Abatement thereof Nov. 8. 81. to which the Court gave no Answerduring its sitting Nevertheless the same was over-ruled Judgment Entred Execution issued and put into the Provost Marshal's Hand for Levying the said 150 l. who immediately came to Hanson's House Attacht Ten Negroes but left them behind till he could speak with him and see if he would pay the Money for which purpose he came again about Four days after and demanded the said Negroes but knew not their Names nor where to find them Nevertheless he might then have Attacht his Person or Extended his House Land or Goods all which he refused to do at that and at all other times when he came to Levy the said Fine HANSON thereupon desired the Provost Marshal to forbear till he could Petition the Council for a Writ of Error promising if he would so do to give him no further Trouble to which he consenting HANSON Petitioned Sir Richard and the Council for a Writ of Error Dec. 13. 81. Assigning several Fatal ones but Sir Richard would not suffer it to be read declaring the Council had nothing to do therewith HE Petitioned Sir Richard alone for the same praying stay of Execution Dec. 16. 81. offering to give good Security to abide His Majesties Determination
Answer put in by Sir Richard thereto until WHEN the Right Honourable the Lords Committee made a Report to His Majesty in Council Wherein Nov. 7. 83. FIRST They offered as their Opinion that the Fine of 150 l. No new Proofs were ever yet admitted on an Appeal to admit the same were the only way to make an Inlet to all Perjury a thing of dangerous Consequence was irregularly set but desired to hear the whole Matter again and to have a new Examination thereof and that Five Months time might be given to transmit such Records Proofs and Informations as should be necessary thereto 2. THAT Sir Richard with the Council there might cause all necessary Proofs to be taken upon Oath on either side and transmitted over 3. THAT in the mean time the 150 l. remain where it then was and all Three Causes to be heard together 4. THAT Hanna perfect his Examination within one Month so as Hanson give him a full and final release from all damages that might arise to him by answering any Interrogations that should be put to him Which Report was confirmed that day but Hanson before he heard thereof on the SENT a Letter to Sir Richard to acquaint him with his Resolutions of proceeding against him at Common Law for his false Imprisonment Nov. 8. 83. and the Ship he took from him writ him the Name of his Attorney and desired an Appearance and Bail without further Trouble or Charge Nov. 14. 83. SIR Richard petitioned his Majesty in Council a Copy whereof was ordered to Hanson and he required to Answer the same on the 16th of that Month. HANSON put in his Answer thereto Nov. 16. 83. and thereby confuted all the scandalous Matter therein contained submitted his Case wholly to His late Majesties Royal Consideration and prayed FIRST Liberty to proceed at Law as aforesaid 2. THAT a Commission might issue to impower indifferent persons to examine Witnesses in Barbadoes as before he had pray'd if any new Evidence should be thought fit to be admitted upon an Appeal 3. OR that he might be heard by his Council at that most Honourable Board upon the whole matter before Sir Richard's going over TO which answer he annext several Articles of High Misdemeanor against Sir Richard on behalf of the Inhabitants of the Island on reading whereof FIRST It was ordered that it should be left to Hansons choice whether he would proceed at Commen Law or attend the Determination of his Appeals at that Board 2. THAT unless Hanson released Sir Richard from all further Prosecution at Common Law upon the Matters of the said Appeals before the 21st of that Month the Two latter Appeals should stand dismist 3. THAT Mr. Attorney General and Mr. Graham on his Majesties behalf should take effectual Care to assist Sir Richard in the Suits prosecuted against him by Hanson Nov. 21. 83. HANSON put in his Answer to that Order and therein set forth FIRST That he never doubted his Majesties and that most Honourable Boards Justice 2. NEITHER did or would he wave the same 3. THAT he would always submit any Cause of his to His Majesties Royal Determination so as the same could properly come before Him in Judgment and would have waited the Five Months aforesaid and the hearing of the Causes before any proceeding at Law but that FIRST Sir Richard and the Council in Barbadoes were not only appointed to examine his own but Hansons Witnesses also and that not only in the first but the two latter Appeals both which concern'd Sir Richard alone a thing without President and of dangerous Consequence to be led in example and would prove fatal to Hanson in depriving him of his Witnesses Testimony for that none of them would dare to come before Sir Richard to be examined and no other Person durst take their Affidavits against their Governour unless appointed thereto 2. BECAUSE the Order aforesaid which seemed to leave Hanson to his Election was so penn'd as that it took away from him that Freedom and obliged him to proceed at Law in as much as he was thereby obliged immediately to release Sir Richard if he intended to abide the hearing of that Board which if he should do and the Council upon hearing should as they had in the aforesaid Case of Mingham declare they could not assess Damages therefore leave him to law for the same then would such Release be pleaded in Bar to his Declaration which he could not conceive was designed by the Lords of the Council no more than they would order Mr. Attorney General and Mr. Graham on his Majesties behalf to defend Sir Richard against Hansons suits which were civil Causes arising by matters between him and Sir Richard and His Majesty no way concerned therein as a Party and yet even that was ordered also BUT the said Hanson did then offer in his said Answer FIRST To refer all the Matters in Difference between him and Sir Richard to any Person of Honour or known Honesty even to the nearest Relation and best Friend Sir Richard had Or 2. TO take what Sir Richards own Council and Sollicitor had offer'd him after the first hearing about the fine tho not a Fifth Part of his Damages rather than to have any further Contest or Trouble 3. TO stay all Proceedings at Law till the hearing appointed should be over so as he might not for the Reason beforementioned be obliged to Release Sir Richard And so as 4. TWO indifferent Persons on either side might be appointed to examine both Party's Witnesses fairly and impartially if any such new Witnesses should be admitted to Examination and so as all Proceedings upon the Masters of the Ship 's Bond that brought him over might be stayed till after such hearing UPON reading whereof Hanson was left to his free Election to be declared by the then next Council Day whether he would proceed at Law or abide the hearing at that Board without altering any thing in the former Orders HANSON by his Answer for the Reasons aforesaid Nov. 23. 83. was obliged to make Choice to proceed at Common Law therefore prayed FIRST That Sir Richard might be ordered to appear and put in Bail 2d THAT he may Answer the General Articles Exhibited against him on behalf of the Island before his going thither whereupon it was Orderd FIRST That Hansons two latter Apeals be dismist SECONDLY That his first about the 150 l. fine Before Fines were set by Majority of Votes of the Judges and Justices pesent But by this new Order they were to be set by the Governour and Council whom he always Governs should be transmitted into Barbadoes and a new fine be set upon him in pursuance of that former Verdict by the Court of Grand Sessions who by the said Order are directed to proceed to a new Judgment thereupon in that Island according to His Majesties new Regulation then made 3dly CAPTAIN Youngs Bond of 2000 l. penalty to be put
Court of Exchequer for trying the Cause upon the aforesaid Capt. Richard Young's 2000 l Bond to which Court RICHARD SEAWELL Esq His Majesties Attorney General Jan. 19. 83 4. came and exhibited three several Informations one against Young the other two against each of his Sureties Matthew Haviland and John Fowler these Informations were in His Majesties name and on his behalf prosecuted but the Bond was entred into to Sir Richard Dutton and never by him assigned to the King The Information sets forth That on September 18. 1682. Young Haviland and Fowler became joyntly and severally bound to the said Sir Richard Dutton Governour of Barbadoes in a Bond of 2000 l. penalty conditioned among other things that Young should not carry off any person whatsoever White or Black without a Ticket from the said Sir Richard or his Successors Deputy or Deputies THAT contrary to this Bond Note Whatever Cresset Writ was in kindness to Sir Richard and prov'd to be truth For the King and Council have declared that Judgement erroneous which Hanson complained of and Cresset writ some of the Lords were of opinion would be reverst when the Cause came to hearing therefore advis'd him to end the matter there which was all the Letter Young carrid off Samuel Hanson a Planter and Resident on the Island without a Ticket which Hanson was then a Prisoner for Crimes and Misdemeanors committed against His Majesty contained in an Order of the Governour and Council made October 31. 1682. which Order recites That Hanson was committed some days before by Warrant from Sir Richard for divulging the Contents of a Letter sent to him by John Cresset of London Sollicitor in which Sir Richard was traduced and some Lords of the Kings most Honourable Privy Council unfitly mentioned and exposed to the Malicious Censure of the disaffected in that Island to His Majesties Government and ordered to remain in custody till with sufficient Sureties he should enter into a Recognizance of 10000 l. before three of His Majesties Council to answer the same and other misdemeanours committed IT also recites That Hanson appeared that day before the Council and upon Examination denyed that he had seen the Letter so directed as aforesaid but confessed he received a Copy thereof from one South his Correspondent which Copy he produced and upon Examination was found a true Copy the which he confest he had shown or read to three persons or suffered them to read it for which and other misdemeanors he had done to Sir Richard he was remanded till he should find Surties as aforesaid and for the good Behaviour and the Copy of his Letter to remain in the Secretaries Office till Sir Richard should think fit to make use of the same there or in England THEREFORE the Attorney General insisted that the 2000 l. being the penalty of the Bond for breach of the Condition thereof in bringing away Samuel Hanson was become due to His Majesty and prayed a Judgement for the same Young Haviland and Fowler by Council appeared prayed time to plead Feb. 2. 83 4. and had till the Thursday following given for that purpose THEY all Three pleaded severally Feb. 6. 83 4. THEY protested against the Information adding that the matter therein contained was not sufficiently set forth and denied that they were guilty of any contempt against the King or breach of his Laws in manner and form as in the Information was set forth but for further Plea 1. THEY said that upon the Construction of the Law it is evident that the intent of entring into such Bonds as aforesaid was only to secure the Inhabitants of the Island who should have their Debtors or Slaves carried off without a Ticket 2. THAT by constant usage the Governors have ever since the Act made assigned over such Bonds to the Persons agrieved by the carrying off any Person contrary to the form of the Act which Implies the Governors by that Act are only made Trustees for the Inhabitants in such Cases Optima est Legum Interpres Consuetudo 3. ALL such Assignments as by the Act are directed would be void if the said Bonds should be construed to be made to the Governors in trust for the King for in such Case the Governors connot Assign the King's Debt to any Person Especially if not Creditors of the Kings 4. If it should be alledged that the King is damnified by Young's carrying off Hanson yet is the information defective in its not setting forth wherein and how much of which the Court ought to judg whereby the Defendants are outed of their Appeal granted by an Act of the Island Entituled An Act for the establishing the Court of Common Pleas within the same 5. HAVILAND and Fowler pleaded that the Attorney General had before exhibited an Information against Young the Principal for the said 2000 l. supposed due to the King which they conceived amounted to a Prior Information 6. THEY insisted that they ought not to be charged in that Court till return made That the Principal could not be found or was insolvent Magna Charta Cap. 8. saith as followeth Neither shall the Pledges of the Debtor be distrained as long as the Principal Debtor is sufficient if the Principal fail of Payment having nothing wherewith to pay or will not pay where able then the Pledges to answer 7. THEY say taking such Bonds by any Person for the use of the King is expresly prohibited by the Act of 33. Hen. 8. cap. 39. therefore the Act of that Island cannot be construed to be repugnant to that Statute c. 8. THEY insisted that the said Bond if at all suable for the King ought not to be sued in Sir Richard's Name all Bonds to the King's use being prohibited as aforesaid from being taken in any name but his own 9. THEY alledged that the Attorney General in his Informations hath not shown that Sir Richard did assign the said Bond to the King 10. THEY insisted that the Attorney General in his Informations hath not cited the proper Acts whereby any Officer is impowered to take any such Bond with such Condition endorsed as he pretends is forfeited to the King 11. THEY aver that if the Information should be ruled right to lye then Judgmeet would be entred for 2000 l. and no relief against the intire penalty to be had tho the Damages designed by the Act to be made good should not amount to a 20th part thereof which would be a grievance expresly against the Letter of the Law and contrary to the constant practice of recovering Damages upon the said Statute 12. THEY add that by this method of proceedure they should be deprived of the benefit of their Appeals expresly provided for by the Act for setling the Court of Common Pleas for that being a Court Inferior to this high Court cannot be appealed to from any Judgment given here so that they must be left without any Adjustment of the Damages which by the Law