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David Galbreath & Thomas Elmes - Chancery - 1811


29 April 1811  

To the Right Honourable John Lord Eldon Baron Eldon of Eldon in the County of Durham Lord High Chancellor of Great Britain  

Humbly complaining sheweth unto your Lordship your orators Gabriel James Anthony Loughnan John Ohill, William Dixon Adam Lodge Bridge Aspinall, John Thomas, Joseph Fletcher, John Richardson William Neilson William Swann and Peter Whitfield Brancher all of Liverpool in the County Palatine of Lancaster under writers That in the month of January one thousand eight hundred and ten David Galbreath and Thomas Elmes the defendants hereinafter named who are merchants in the City of London in copartnership together and who are also carry on the same business in copartnership together in Philadelphia in America employed Messrs William Forde and Company of Liverpool aforesaid merchants as their agents to effect an insurance for them on a quantity of five hundred bales of cotton which they alledged they had then shipped or were about to ship on board of a certain American vessel called Abeona then lying in the port of New Orleans in the District of the Mississipi in North America for a voyage from thence to England with liberty to touch at Madeira or Lisbon and that the said Messrs Forde and Company in consequence of such direction did as the agents of the said Daniel (sic) Galbreath and Thomas Elmes accordingly cause a certain Policy of Assurance bearing date on or about the tenth day of the said month of January one thousand eight hundred and ten to be prepared and effected whereby the said Messrs William Forde and Company as well in their own name as in the names of all and every other person and persons to whom the same might appertain in part or in all did make assurance and cause themselves and them and every of them to be insured lost or not lost from New Orleans to the port of discharge in the United Kingdom with or without papers or clearances or with clearance to any part or parts with leave to call at Fayall Madeira or Lisbon all or any and to transship in any vessel or vessels and land and reload the property upon any kind of gods and merchandises and also upon the body tackle apparel advance ammunition artillery boat and other furniture of and in the good ship or vessel called the Abeona from New Orleans and afterwards ship or ships whereof was master under God for that present voyage   (blank space)   Palmer or whosoever else should go for master in the said ship or by whatsoever other name or names the same ship or the master thereof was or should be named or called beginning the adventure upon the said goods and merchandises from the loading thereof aboard the said ship upon the s’d ship .. and should continue during her abode there upon the said ship ..  

And further until the said ship with all her advance tackle apparel .. and goods and merchandises whatsoever should be carried at upon the said ship until she had moored at anchor twenty four hours in god safety and upon the gods and merchandises until the same should be discharged and safely landed and it should be lawful for the said ship .. in that voyage to proceed and sail and touch at any parts and places whatsoever without prejudice to that insurance the said ship .. goods and chattels .. for so much as concerned the assured by agreement between the assured and assurers in that policy were and should be valued at on cotton and the perils losses and damages thereby insured against ------- were such as are usually insured against in policies of the like nature and he premium on the said policy was thereby declared to be at and after the rate of ten guineas per cent to return three pounds per cent if the said ship came direct to the United Kingdom or two pounds per cent if the said ship called at one intermediate port only and the property should not be landed or transshipped and arrive and the same insurance was declared to be on cotton as by the said writing or policy of assurance when produced will appear  

And your Orators further shew unto your Lordship that upon the said policy being effected as aforesaid the said Messrs William Forde and Company as the agents of the said defendants and on their behalf applied to your orators and requested them to underwrite the said policy and as an inducement to your orators so to do they represented to your orators that the said vessel was then living in the Port of New Orleans as aforesaid perfectly sea worthy and well and sufficiently manned and in all respects well found equipped and furnished for the voyage  

And your orators further shew unto your Lordship that upon the faith of such representations and fully believing that the said vessel was in a state and condition in which she had been described your orators consented to underwrite the aforesaid policy upon the said cotton and did accordingly underwrite the same at the respective times and for the several sums and in manner following that is to say your orator (deleted sentence)

And your Orators further shew unto your Lordship that after having so underwritten the said Policy as aforesaid Your orators received no advice or information concerning the said vessel except that she had commenced her voyage till the month of June last when the said Messrs William Forde and Company to the surprise of your orators sent them the following letter giving them Notice of Abandonment and claiming on the part of the owners a total loss that is to say
“Liverpool twenty seventh June one thousand eight hundred and ten Gentlemen – We yesterday learnt from Mr Grant owner of the Spanish brig Havannah now here that he fell in with the Abeone at sea in the greatest distress with eight feet water in her hold that at the solicitation of the Captain he continued in company twenty two days during which they took out part of her Cargo and threw her ballast overboard by which means they were enabled to get her into Teneriffe where she was condemned and ship and cargo sold for the benefit of the Underwriters on our Policy in your office – That in consequence of the above information we as agents to the owners abandon to them all interest in the said cargo and claim a total loss We are Gentlemen your obedient servants William Forde and Company”
as by the said letter now in the possession of your orators or one of them ready to be produced will appear  

And your orators further shew unto your Lordship that upon receiving the aforesaid letter from the said letter from the aforesaid Messrs William Forde and Company your orators applied to them and also to the said David Galbreath and Thomas Elmes and requested them to furnish your orators with the usual ships books and papers and sufficient proof and documents of the alledged loss and what became of the said cotton upon which the said Insurance was effected and how the leak or other damage to the ship had been occasioned in order that your orators might be enabled to ascertain whether the said ship had been sea worthy at the time of commencing her voyage and that your orators might also know what had become of the cargo insured  

And your orators further shew in Answer to such application the said Messrs William Forde and Company on behalf of the said defendants laid before your orators copies of certain papers purporting to be the protest of the Captain of the said vessel made at Teneriffe a Certificate signed by a Spanish officer at the Port of Saint Croix of a survey of the vessel alledged to have been made there previous to her condemnation a copy of an affidavit of the said Captain made at New York in America upon the subject of the alledged loss and some few copies of a letter alledged to have been written by the said Captain to the owners of the vessel and to have passed between him and J. (or I.?) Armstrong Esquire the Consul of the United States of America then residing at Teneriffe by which it appeared that in consequence of a leak which the said vessel was stated to have sprung soon after she got to sea she made so much water as to be forced in order to enable her to reach the nearest port to borrow four additional hands from a Spanish brig called the Havannah which she accidentally met at sea by whose assistance after throwing over board great part of the ballast and making jettison as it is alledged of all the anchors and spars the vessel could spare and by means of constant working the pumps the vessel was bought into the harbour of Saint Croix in the Island of Teneriffe on the thirteenth of January when she was condemned as not sea worthy and sold with all her cargo And that the produce of the sale of the cargo had been received the American Consul who refused to give it up as by the said several papers now in the possession of your orators and to which they now leave to refer reference being thereunto had will more fully appear And you orators further shew that no Invoices or Bills of Lading of the cargo or any other papers relating to the cargo of the said vessel when produced to your orators and that upon examining the papers so produced as aforesaid there did not appear to be any sufficient cause for the violent leak which the said vessel was so stated to have sprung no storm appearing to have happened in the course of the voyage nor any bad weather except one heavy gale to the southward which it is alledged happened when the leak was first discovered and that there is not any mention made in the said papers or letters or any of them of the state of the said vessel at the time she left the port of New Orleans commenced her voyage nor even any general allegation contained therein that she was then sea worthy or sufficiently manned or well sound and equipped as is usual in such cases nor did the said papers or any of them contain any account or statement whatever of the cargo or what had become therefore of the produce of the sale thereof except as aforesaid  

And your orators further shew that after an examination of the said papers the same being very unsatisfactory and defective with respect to the several particulars aforesaid and it not appearing thereby what the produce of the sales of the cargo or why the same had been retained by the American Consul or what in fact the cargo consisted of your orators requested to be furnished with the several papers and documents upon the subject and in particular applied to the said Messrs William Forde and Company for that purpose in answer to which application your orators received from the said Messrs William Forde and Company the following letter dated London the eighth day of October one thousand eight hundred and ten sent to them by the said defendants for the information of your orators that is to say
“Gentlemen understanding that the underwriters upon the Abeona desire to have copies of the under mentioned documents we subjoin our remarks upon each for their Government and remain Gentlemen your obedient servants Henry Waddington and Company – Papers wanted – Survey of the American Captain’s and by the constituted authorities – Answer – The copy of the only survey made has been exhibited – Account Sales at Teneriffe – Refused by Armstrong when applied for by the said Captain – Copy of the Bond given by Armstrong – no copy in England – Orders for Insurance from Philadelphia with the letters from New Orleans on which the orders were grounded – It is presumed that no house of any character would direct and Insurance to be effected without having a bona fide interest and the Invoice and Bill of Lading sufficiently prove such interest in their case the original orders will be exhibited in Court – Copies of all correspondence between the owners at Philadelphia or London with Sayres? or Armstrong – Armstrong has never replied to any of the letters from America or England which required him to remit the proceeds”
As by the said letter now in the possession of your orators reference being thereunto had would appear  

And your orators further shew unto your Lordship that they have not been able to obtain from the said defendants of the said Messrs William Forde and Company any other documents or papers whatever relating to the loss of the said vessel or her cargo although your orators have frequently applied for the same and your orators hoped that the said defendants David Galbreath and Thomas Elmes would not have attempted to force payment from your orators of their several subscriptions to the said policy as for a total loss without giving to your orators fuller and more satisfactory evidence upon the subject and allowing your orators time to make such enquiries as might enable them to ascertain the real facts of the case and that more especially as your orators have been always ready to pay the amount of their several subscriptions in case the said loss was fully and satisfactorily proved and in case it should also appear that the said vessel was sea worthy and properly manned and otherwise well found and equipped for her voyage at the time of her commencing the same and your orators have accordingly frequently offered the said defendants so to do if they would give your orators reasonable and satisfactory proof thereof And your orators well hoped that the said David Galbreath and Thomas Elmes would accordingly have acquiesced thereto and would have forborne to institute any proceeding at Law against your orators to compel the payment of their subscription upon the said policy until the real truth and justice of the case could have been ascertained by the means aforesaid  

But now so it is may it please your Lordship that the said David Galbreath and Thomas Elmes combining and confederating together and with divers other persons at present unknown to your orators whose names when discovered your orators pray they may be at liberty to insert herein with apt words to change them as parties defendants hereto and contriving how to oppress your orators in the premises the said confederates have actually without giving your orators any opportunity of making any further enquiries upon the subject or producing any other documents or papers to your orators commenced separate actions against your orators in His Majesty’s Court of King’s Bench to recover from them the whole amount of their several subscriptions upon the said policy as for a total loss and they are about to proceed to the trial of the said actions  

and your orators further shew unto your Lordship that they are at present unable as they are advised to proceed at present to defend the said actions for want of sufficient evidence of the several matters material to their defence and to the justice of the case but your orators charge that from the defective statement contained in the said papers so delivered to them by the said defendants both with respect to the said vessel and her cargo and from the refusal of the said defendants to produce them any further papers and documents although your orators have frequently requested so to do and also from other circumstances which have lately come to the knowledge of your orators as hereinafter mentioned your orators have great reason to suspect and believe and do suspect and believe that a fraud hath been practiced upon them respecting the said insurance both as to the sea worthiness of the said ship and her equipment at the time of her commencing her voyage at the port of New Orleans and also as to the cargo insured by the said policy and the circumstances attending the alledged loss thereof and the sale thereof at the Island of Teneriffe and the disposition of the proceeds of such sale and as evidence thereof among other things your orators charge that they have lately discovered that notwithstanding it is stated in the aforesaid Certificate of Survey of the said vessel alledged to have been made at Teneriffe and delivered to your orators as aforesaid that the Captain and crew of the said vessel had stated that she struck a ground at her departure from the River of New Orleans and which your orators believed till lately upon the faith of such Certificate to have been the fact and therefore supposed the same to have been an accident which had happened after the commencement of the risk under the said policy Apt in fact or they verily believe and as they doubt not they should be able to prove if they had an opportunity of examining their witnesses residing at New Orleans upon the subject the accident of the said vessel so running a ground did not take place as the vessel was coming out of the River of New Orleans in the performance of her voyage to Europe after the risk Had commenced under the said policy but that the same happened as the said vessel was going into New Orleans for the purpose of taking in her cargo and previously to her taking in any part thereof and before the said risk under the policy commenced and that such account was known to the said defendants when they gave directions to effect the aforesaid policy but was concealed by them from your orators and that no examination of the keel or bottom of the said vessel was ever had at New Orleans after the said accident and previous to the said vessel commencing her voyage but that the vessel afterwards lay in the mud in such a situation as that the damage which had happened to her by her so running a ground could not be discovered previous to her commencing her voyage and getting out to sea without an accurate examination of her bottom and keel  

And your orators charge that the leak which the said vessel is stated to have sprung at sea as aforesaid was occasioned solely by the said accident of the said vessel so running a ground before she entered New Orleans as aforesaid And that she was not seaworthy when she left New Orleans or when the risk commenced under the said policy and that she was not sufficiently manned and otherwise well found equipped and furnished for her voyage as she ought to have been And so it would appear if the said matter were to be properly investigated and your orators had an opportunity of giving evidence thereof by examining the witnesses at New Orleans and as further evidence your orators charge that it appears by the aforesaid Certificate of Survey at Teneriffe in which the accident of the said vessel so running aground is falsely & mistakenly stated to have happened at her departure from New Orleans that the said leak was most probably occasioned by the aforesaid accident of her running a ground or by her general bad condition as not being sea worthy at the time of her commencing her voyage the said Certificate containing the following statement upon the subject
“We proceeded to examine and survey her prow stern wales sides and bottom both inside and out having opened several …ings in order to learn whether it proceeded from her seams stern or stern? Post? &c It was found that the said seams were all without calum although that is not supposed to be the cause of the leak but it proceeds from her bottom contiguous to the keel having seen that a piece of her forefoot is wanting and her Captain and crew having stated that the vessel truck a ground at her departure from the River of New Orleans it is to be presumed that the leak originates principally from the keel for the said ship being sheathed so great a quantity of water as she this day makes the sea smooth could not proceed from the parts examined that having also surveyed her rigging and sails they were found in a very bad condition the former deficient in many parts and her sails very ill treated and split "

And your orators further charge that notwithstanding the aforesaid the aforesaid statement contained in the said Certificate of the said vessel having run aground after she commenced her voyage as aforesaid yet that the protest of the Captain of the vessel a whereof is now in the possession of your orators contains no such allegation nor statement whatever of the said vessel having run a ground or in any manner touched the ground after the commencement of her voyage  

And your orators further charge that the Captain who navigated the said vessel from New Orleans to Teneriffe was not the person who had the command of her and navigated her to New Orleans when the aforesaid accident happened  

And your orators further charge that none of the crew of the said vessel or any of the persons who made the alledged survey of her at Teneriffe as aforesaid are now in England but that they are at New Orleans or elsewhere in America  

And your orators further charge that the said confederates or their agents have received and got into their hands various documents letters papers and other writings relating to the said vessel and her state and condition at the time of her sailing from New Orleans and giving some account of the said previous accident of her running aground and others which they have also received from the said John Armstrong the American Consul at Teneriffe or some other person or persons there relating to the particulars and value of the said cargo and the produce of the sale thereof and which would shew how the same hath been applied and what is become thereof  

 

And your orators charge that it would appear if the truth of the case were fully investigated and the said books papers and letters were produced that little or no damage was done to the goods belonging to the said confederates which were so insured by the Policy under written by your orators and that the money produced by the sale thereof hath been remitted to the said confederates or their agents or correspondents by the said John Armstrong or that he hath in some manner accounted to the said confederates for the same and that the same hath come to their hands or been paid to some other person or persons by their order or for their use or on their account  

And your orators charge that the said confederates or some or one of them have or hath or lately had in their or his possession custody or power unless they have willfully lost burnt or destroyed the same the original bills of parcels of the said cargo and the invoices and bills of lading thereof and divers books of account accounts ………….. letters copies of letters and other documents papers and writings relating to the said vessel and her cargo or some of the matter aforesaid by which if the same were produced your orators would be enabled to prove the truth of the several matters aforesaid or which would give your orators such information respecting the same as would enable your orators to produce the necessary legal evidence to shew that the said vessel was not sea worthy or sufficiently manned or otherwise well found furnished and equipped for her voyage at the time of her commencing the same from the Port of New Orleans and when the risk under the said policy commenced and that the said confederates received the whole or the greatest part of the money produced by the sale of the said cargo insured by the said policy and that they have therefore sustained little or no damage by the aforesaid alledged loss of the said vessel and her cargo  

and your orators further charge that a very considerable part of the said cargo was insured by the said confederates under the said policy hath actually arrived in England and hath come to the hands of the said confederates or some of them or to the hands of some other person or persons as their agent or agents or on their behalf and that the same is now in their possession or in the possession of some other person or persons on their account or for their use or if not that the same hath been sold by the said confederates or on their account since the same arrived in England and that the produce thereof hath been received by them or some of them or some other person or persons for their use or who is or are accountable to them in respect thereof  

And your orators further charge that there are several persons now resident in New Orleans or elsewhere in America who are well acquainted with the state and condition of the said vessel at the time of her sailing there from and also with the circumstancing attending her previously running aground in coming into New Orleans as aforesaid by where evidence if your orator had an opportunity of examining then they would be able to prove that the said vessel was not seaworthy and properly found equipped and furnished for her voyage as she ought to have been and that your orators ought not therefore to be liable to pay the amount of the several sums for which they have respectively under written the said Policy as aforesaid  

and your orators further charge that they cannot as they are advised safely proceed to a trial of the said actions without a discovery of the truth of the several matters aforesaid from the said confederates upon Oath together with the production of the several documents books papers and writing relating to the several matters aforesaid in their possession and without a commission being issued out of the Honourable Court to enable your orators to examine their writings as to the matter at New Orleans and elsewhere ahead where depositions your orators may be able to read on the trial of the said actions all which actings pretences and refusals of the said confederates are contrary to Equity and good conscience and tend to the manifest wrong and injury of your orators in the premises  

In tender consideration whereof and for as much as your orators are without remedy in the premises at Common Law and can only have relief in a Court of Equity where matters of this sort are properly cognizable and relievable To the end thereof that the said David Galbreath and Thomas Elmes and their confederates when discovered may upon their several and respective corporal Oaths according to the best and utmost of the several and respective knowledge remembrance information and belief full true perfect and distinct answer make to all and singular the matters aforesaid and that as fully and particularly as if the same were here repeated and they thereunto severally and distinctly interrogated and more especially that the defendants may answer and set forth in manner aforesaid whether the said defendants did not in the month of January one thousand eight hundred and ten or at some other and what time employ the said Messieurs William Forde and Company or some and what other persons as their agents to effect an insurance for them on a quantity of five hundred bales of cotton or on some and what other quantity or number of bales of cotton or other and what goods which as they alledged or pretended they had then shipped or were about to ship on board the said ship Abeona then stated to be lying in the aforesaid Port of New Orleans or some and what other place for a voyage from thence to England in manner herein before mentioned or how otherwise and whether the said Messieurs William Forde and Company did not in consequence of such direction as the agents of the said defendants cause such policy of insurance as is herein before mentioned to bear date on or about the tenth day of January one thousand eight hundred an ten to be prepared and effected of or to the purport and effect herein before mentioned or some and what other policy of any and what other date purport or effect  

And whether upon the said policy being effected as aforesaid or at some time and what other time the said Messieurs William Forde and Company did not as agents of the said defendants and on their behalf apply to your orators and request them to under write the said policy or how otherwise and whether they did not as an inducement to your orators so to do represent to your orators or some or one and which of them or give them to understand that the said vessel was then lying in the Port of New Orleans perfectly sea worth and well and sufficiently manned and in all respects well found equipped and furnished for her voyage and what representations in particular did the said Messieurs William Forde and Company make to your orators in respect of the matters last mentioned  

And whether your orators did not upon the faith of such representations as aforesaid and fully believing the same consent to underwrite the aforesaid policy upon the said cotton or how otherwise and whether they did not accordingly underwrite the same at the respective times and for the several sums and in manner aforesaid or how otherwise  

And whether after having so underwritten the said policy your orators ever and when received any and what advice or information concerning the said vessel except that she had commenced her voyage till the eleventh of June last and if not why not and whether then or at some and what time the said Messieurs William Forde and Company did not give your orators notice of abandonment as for a total loss by the letter herein before mentioned to be dated at Liverpool twenty seventh June one thousand eight hundred and ten or by some and what other letter or some and what other means and whether the same letter was not of or to the purport and effect herein before set forth or of some and what other purport and effect and whether upon receipt of such letter from the said Messieurs William Forde and company your orators or some and which of them did not apply to them and also to the said defendants or to any and which of them and request them to furnish your orators with the usual ships books and papers and sufficient proofs and documents of the alledged loss and what had become of the said cotton upon which the said insurance had been effected and how the leak and other damage to the ship had been occasion for the reasons herein before in that behalf mentioned or what in particular did your orators request at the time they made such application as aforesaid and whether in answer to such application the said Messieurs Forde and Company did not on behalf of the said defendants provide and lay before your orators such papers as are herein before mentioned and no other or how otherwise  

And whether the said papers did not state to the effect herein before mentioned or how otherwise and whether any and what other papers or documents relating to the said vessel or her cargo or the said alledged loss have been ever and when delivered to your orators by the said defendants or their agents or how otherwise and if not why not and whether your orators did not after an examination of the said papers so produced for the reasons herein before mentioned to furnish them with some and what other documents and papers relating to the loss of the said vessel and her cargo and whether in answer thereto the said confederates did not write and send to the said Messieurs William Forde and Company for the information of your orators such letter as is herein before mentioned bearing date the eighth day of October one thousand eight hundred and ten or some and what other letter of some and what date to that or the like or some and what other purport and effect  

And whether your orators have not frequently applied or caused applications to be made to the confederates for further documents and papers as aforesaid since the receipt of the said letter or how otherwise  

And whether the said confederates have not refused to allow your orators any time for investigating the truth of the several matters aforesaid and have not bought separate actions against your orators in his Majesty’s Court of King’s Bench to recover from them the amount of their several subscriptions to the said policy as for a total loss and whether the said confederates are not about to proceed to trial of the said accounts without giving your orators any further time for the purposes aforesaid or how otherwise And whether your orators have not for the reasons herein before mentioned frequently requested them so to do or how otherwise  

And whether the statement contained in the foresaid certificate of survey of the said vessel at Teneriffe whereby she is stated to have struck aground at her departure from the river of New Orleans is not false or unfounded and whether the aforesaid protest of the Captain of the said vessel contains any and what allegation to that effect or how otherwise and if not why not and whether in fact the accident of the said vessel running aground did not happen when she was going into the river or port of New Orleans for the purpose of taking in her cargo and before she had taken in the same and before the risk under the said policy commenced  

And whether the same was not known to the said confederates or some and which of them when they gave directions to effect the aforesaid policy or how otherwise and whether the said circumstance was not concealed by them from your orators and why or how otherwise in fact any and what examination of the keel or bottom of the said vessel was ever and when had and where and by whom previous to the said vessel commencing her aforesaid voyage from New Orleans and whether the said vessel did not lie in the mud in such a situation as that the damage which had happened to her by running aground as aforesaid could not be ascertained previous to her commencing her voyage and getting out to sea without an accurate examination of her bottom and keel and whether the leak which the said vessel was stated to have sprung at sea aforesaid was not occasioned solely by the said accident of the said vessel so running aground before she entered New Orleans aforesaid  

And whether the said vessel was not therefore in such a state at the time she left New Orleans on her said voyage as not to be sea worthy And whether she was not also in some and what manner defective as to the number of men on board and as to the state of her equipment and furniture for her said voyage or how otherwise And whether the aforesaid Certificate of Survey of the said vessel so made at the Island of Teneriffe as aforesaid did not contain such statement or allegation as to her condition and the causes of her leakage as is herein before mentioned and set forth or how otherwise  And whether the Captain who navigated the said vessel from New Orleans to Teneriffe upon her said voyage was the person who had the command of her when she ran aground in going in to New Orleans as aforesaid  

And whether the confederates or some and which of them or their agents have or hath not received and got into their hands various or some and what documents letters papers and other writings in some and what manner relating to the said vessel and her state and condition at the time of her sailing from New Orleans and giving account of the said accident of her running aground as aforesaid together also with some and what other documents letters papers or writing received from the said John Armstrong or some and what other person or persons there relating to the particulars and value of the said cargo in some and what manner and the produce of the sale thereof and which could show the same hath been applied and what is become thereof and whether it would not appear by the production thereof or whether in fact the truth is not that little if any damage was done to the goods belonging to the said confederates which were insured by the said Policy and whether the money produced by the sale thereof or some and what part thereof hath not been remitted to the said confederates or some of them or their agents or correspondents by the said John Armstrong or whether he hath not in some and what manner accounted to the said confederates or some and which of them for the said money and some and what part thereof and whether the said money or some and what part thereof hath not come to their or some and which of their hands or been paid to some and what other person or persons by their order for their use or on their account and whether the said confederates or some or one and which of them have or hath not or some time and when last had not in their or his possession custody or power the original bills of parcels of the said cargo and the invoices and bills of lading thereof and divers or some and what books of accounts accounts memorandums letters copies of letters and other documents papers and writings relating to the said vessel and her cargo or some and which of the matters aforesaid  

And that the said confederates may set forth a list or schedule thereof and may produce and leave the same and every of them in hands of their Clerk in Court in this cause for the usual purpose and if any of them are not now forthcoming that the said confederates may discover and set forth what is become of all and every of them not s forth coming and when and where and in whose possession custody or power as they last saw the same or the same respectively was or were and whether they have not willfully lost burnt or otherwise destroyed the same and whether a very considerable or some and what part of the cargo so insured by the said confederates hath not arrived in England and hath not come to the hands of the said confederates and some and which of them or to the hands of some and what other person or persons as their agent or agents or on their behalf and that the said confederates may set forth what is become thereof and whether the same or some and what part thereof hath not been sold by the said confederates on their account and the produce thereof received by them or some and which of them or some and what other person or persons further use or who is or are accountable to them in respect thereof  

And that the said David Galbreath and Thomas Elmes may answer the premises and may make a full and fair discovery of all and singular the matters aforesaid And that they may be compelled to produce and deliver up all books papers and writings in their possession custody or power in any manner relating to the several matters aforesaid And that your orators may have one or more commission or commissions granted to them out of this Honourable Court with the usual and proper directions for that purpose to enable them to examine their witnesses ahead to the truth of the several matters aforesaid in order that their depositions may be read on behalf of your orators on the trials of the said actions at Law and that in the mean time the said defendants may be restrained by the injunction of this Honourable Court from all further proceedings in their aforesaid actions against your orators respectively and from commencing or prosecuting any other action or actions at Law against your orators or any of them on the said Policy of Insurance and that the said Policy may in case the same shall have fraudulently or unduly effected be delivered up to your orators to be cancelled and that all proper directions may be giving for effecting the several purposes aforesaid And that your orators may have such further and other relief in the premises as the nature of the case may require and as to your Lordship shall seem meet  

May it please your Lordship the premises considered to grant unto your orators not only his Majesty’s most gracious writ or writs of injunction issuing out of and under the seal of this Honourable Court to restrain the said David Galbreath and Thomas Elmes from proceedings at Law against your orator touching any of the matter in question but also his Majesty’s most gracious writ or writs of subpoena issuing out of and under the seal if this Honourable Court to be directed to the said David Galbreath and Thomas Elmes and the rest of the confederates when discovered thereby commanding them and every of them at a certain day and under a certain pain therein be limited personally to be and appear before your Lordship in this Honourable Court then and there upon their several and respective corporal oaths full true direct and perfect answer make to all and singular the premises and further to stand to perform and keep such further order direction and decree therein as to your Lordship shall seem meet And your orators shall ever pray

Wm Horne


The National Archives – Ref : C/13/644/12


    


 

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