
    Smith agt Rand &c.
   John Smith Merchant plaint. agt Jsaac Rand late Mate & since Master of the Ship John & Mary, Robert Kemp Carpenter, Henry Butterfeild Gunner, John Smart, Robert Davis, Moses Patrick & James King the company late belonging to the sd Ship them or either of them Defendts in an action of the case for not delivering unto mr George Smith at the Jsland of Thenerife a bayle of Dowlas containing five peices & Sixty five pound of bees wax [ 336 ] made up in the sd bayle shipped by the sd John Smith upon the sd Ship for his own proper accompt & consigned to the sd mr George Smiths which dowlas & wax amounted to the Summe of Fourty two pounds seven Shillings & Six pence in mony at first-cost besides charges which is to the plaintifs damage to value of about Eighty pounds with other due damages according to attachmt Dat. pr° July: 1675. The accion being called some of the Defendts appeared & Lt Ri: Way & Tho: More as Attournies for the whole & engaged in Court to respond what should bee recovered by the plaintife. . . . The Jury . . . founde for the Defendts costs of Court. The plaint, appealed from this judgement unto the next Court of Assistants & himselfe principall in ten pounds & Elisha Cooke & FreeGrace Bendall as Sureties in £:5. apeice acknowledged themselues respectiuely bound to . . . prosecute his appeale . . .

[The Court of Assistants (Records, i. 40-41) sitting as a Court of Admiralty on 17 June, 1675, had ordered John Smith to satisfy the present defendants to the sum of 61l 6s 6d wages and 18l salvage. This case apparently was the owner’s manner of getting even with his ship’s company. The six seamen, for want of security against absconding, had to remain in jail during the action (S. F. 1409.1).

A copy of the boatswain’s account of the cargo, and of records from his book, are in S. F. 1409.5,7; between them comes this significant comment:

Bale N° 61 you mention in the Jnvoyce being in the Gunroome no such appeares, therefore Looke after it there & advise.
This is a true Coppie extracted out of a letter Subscribed Geo: Smith written to mr John Smith from Thenerife 25 Ap: 75. which letter is on file.
as Attests Jsa Addington Cler

Two invoices or bills of lading (S. F. 1409.3, 8) follow:

Shipped by the grace of God in good order & wel conditioned by mee John Smith in & upon the good Ship called the John & Mary of London whereof is Master under god for this pursent Voyage Josias Hare & now rideing at ankor in the port of Boston & by Gods grace bound for Thenerife port Oratavo to Say twenty Six hogsheads. 21 ps. 4. punchins of pease & 25630 pipe Staues. 19. hogshead Tobacco. 4. Chests. 2. bayles. 200. jarrs of Oyl & 9. chest of Losa & one barrell & 10. hogsheads copras &. 230. qt0 of Fish & one box for my acc° as per invoyce . . . and are to bee deliuered in the like good order & wel conditioned at the aforesaide port of Oratauo (the danger of the Seas onely excepted) unto mr Geo: Smith Merchant or to his assignes hee or they paying Freight for the sd goods . . . Dated in Boston the 3d of Novembr 1674. . .
. . . true Coppie . . . Jsa Addington Cler
S. F. 1409.8
Boston ye 2th Novembr 1674
Jnvoyce of goods laden onboard the In° and Mary Iosias Hare Command1, being for the proper accot of mee Jn° Smith & goeth consigned unto mr Geo: Smith Merchant in Thenerife marked & numbred as in the margent as followeth.
26 hhds of peases: 21. pipes of ditto. 4. punchances of ditto. Containing 549 bushlls at 3s 9d per bushell ..............£102: 18:09
per 25630: pipe Staues at 4£ per thousd.............£102: 10:—
N° X : 54: to 57. per 4. Chests of fine yard broad Dowles conta: 42. ps at. 7. £: 10. per peece containes 72 nr ...........£315:
59 per one bayle containing. 5. ps of yard broad dowlas at...... 037: 10:—
per. 65£. of Bees wax yt is in ditto bayle, & in box G: S. at. 1s 6d per pound ......................... 004: 17:06
per 200. Jarrs of Oyle. at. 5s 6d per Jarr ............£055:
N° + 1: to: 9: per 8. Chests of Loca seuerall Sorts de Lixa at. 7. fa per.
1. box of ditto containes in all 4040 Plates at ......... 029:09:02
per. 1. Barrell containes. 178. Hatchetts de bilboa........£017:16:-
per. 66. tobacc° Boxes at. 3s 6d per peece in one of the Chests of dowlas £011
per 10. hhds. of Copperas containing . . . qt........... :59:00:06
N° X 58: per one Bayle containes .5. ps being 907 vares of Roane C[ru]do att......................£:061: :05:04
per 230 qta of Fish 160: qts at 9s...............£.072: :00:-
70: qts at 12s............ £042
£:1001:02:06
Charges.
per: 4. Chests, at: 8. Shillings per Chest .......£ .1:12:—
per: Shipping off the pipe Staues ..........£ 5:02:—
per culling the pipe Staues at............£ .2:12:—
per caske to put the pease in ............£.14:—
per boate hire for the Tobacco chests and copperas & all other charges, paid coopridge portridge & wharfage . £ 10:00:0
£:33:06:0 33:06:00
£1034:08:06
. . . true Coppie . . . Jsa Addington Cler.

Smith’s Reasons of Appeal are not preserved; the defendants’ answer (S. F. 1409.9) follows:

Isack Rand & company their Answer to Iohn Smith his reasons of Appe[al]
1 Wher as hee Saith the baile of goods Shewed for was Shiped on board the Shipe Iohn & Mary ye Defftn denyed it not but as the owned it to bee Soe Shiped Soe they [did a]firm to ye deliuery of it at tenerife and after the deliuery of both of that baile and the rest of the Cargoe they whith the Ship Stayed thear about tenn Weeks a[nd] Reloaded the Shipe with A Cargoe bound for Boustown and in all that time ye deliuery of Sd baile was not questioned but if It had not been deliuered ye defendants] conceaue themselues not obliedged but ye person obliedged was the the[n M]aster naimly Iosias Hare who as mr Smith himself Saith Signed [torn] of lading for it but while hee liued ther was no Demaund of Anny b[torn] then arissing and all tho yt both hee and the boson wher drowned before our coming away from thence ther was no demaund made of it [torn] of us nor Indeed was thear Reason Soe to doe wee being the persons not Jngadged [term] the merchant tho wee owne it is our duty to deliuer ye Shipe according to the [torn] order wch wee did and this baile Jn question amongst the rest as appeared b[y the] bosons book wch is as good A testimony to proue the deliuery of it as the bosons rec[eipt] yt the pltffe pressents is to proue the Shiping it one board; Wheras it is Said the boson could not write and thear fore ye deffts might write in the bosons book: whatever] they pleased to that ye Answer is yt if the boson could write yt receipt wch the pltff pressents for the taikin it in to the Shipe then Surly hee could write in his bo[ok] what is thear written concearing the deliuery of it wher as the pltff obiect ag[ainst] ye bill of costs & prisson fees Saying yt the men Whent to prisson to please th[eir] owne humors and soe caime out againe yt is utterly untrue as appear [torn] ye return made one ye Attachment and wheras it is Said yt George Smith [torn] Sent A letter yt the baile Shewed for was not deliuered it is not yet proued [worn] his letter but wee haue Just cause to Susspect the contrary because ys pret[torn] letter Specifieth ye want of A baile [8]6s wch is neither the bai[le] in question] neither was thear anny sutch baile in the Shipe wee Shall ad no moor yt A Second Master Should bee liable to respond or maike good A first [torn] Jngadgements When no way obliedged soe to doe Wee see no reason fo[r] it soe not doubting but this honrd court will See cawse to Confirme the f[or]mer Judgement Wee Subscribes our selues yor worshipes humble Seruants
Richard Way Athomy to Isack Rand and Companie
[Tho] Moo[r] Aturny to J[ ] R[ ] and Cumpany

The Court of Assistants (Records, i. 46) confirmed the former judgment of the lower court and assessed 41 2d costs on Smith.]  