
    John Griffith vs. James Allen, 1744
   Colony of Rhode Island etc. At a Court of Vice Admiralty held at Newport in sa Colony on Tuesday the 23a October 1744 at ten o Clock A. M

Griffith and Allen

Before the Hon110 Leona Lockman Esqr Judge

The Court being Open’d The Libel and Citation read Mr J. Honyman Produced A Power of Attorney from Cap* Griffith and others his Crew

Mr Ward and Mr Robinson desired the Libel to be dismiss’d saying Mr Honeyman was not properly impower’d which was was [sic] overruled

Mr Robinson was likewise admitted to defend by this Power

The Court was Adjourned untill Wednesday the 31s* of October at 10 o Clock A: M

The Court being Open’d

The Judge decreed that the Security given by s4 Allen on his fitting out is Sufficient Daniel Ayraut Jr and James Honeyman Junr comes into Court and Enacts and binds themselves to pay the Costs of this Court in Case the Judgment be given against John Grifith

J Honyman Jr

D Ayreault Jr

Mr Honeyman moved that Security s4 be givin by the Defendant

The Defendts Pleas were read and filed

The ist Plea overuled 24 Plea overuled 3a Plea Overuled

The Court was adj4 untill 3 o the Clock in the Afternoon and Open’d Accordingly

4th Overuled all the Pleas

The Court was Adj4 untill Tuesday the 6th of Novr 1744 at 10 o Clock A: M and open’d accordingly

A Plea The Court was Adj4 untill Saturday morning at 9 o Clock A:M

Adjourn4 untill monday the 12o1 Ins*

Mr Thomas Doughty Comps Quar: Master of Cap* Griffiths Vessel was sworn and said that on or about the 3o*11 march 1744 outr the Barr of new Providence Cap* Griffith ask’d Cap* Allen if they were consorted to which Cap* Allen answer’d Ay Ay.

Q* How and after what manner was the Prizes to be divided that were taken

Ansr In Proportion to thr Vessels Man for man and gun for Gun

Q* How long was the Appointed time for s4 Consortship

. Anr During the Cruise untill we returned to Providence

Q* Did you ever hear the two Cap*s make any agreem* for a Place of Rendezvous in case of Parting

Anr I understood by Cap* Grifith they were to meet at a Place called Vrsule Cap* Allen came alongside of Cap* Grifith in his Barge and desired him to go on shore w‘h him and upon the return of Cap* Grifith I understood from him that they had agreed upon a place where letters should be left by them in case they Parted.

Q* Have you any knowledge of that Vessel brought in here by Cap* Allen as Prize

Anr Some days after we left Vrusal we discov’d several Vessels, we then spoke together and agreed in order to determine how to Engage the s4 Vessells and the s4 James Allen was to engage one Vessel and the s4 Grifith the other, The Vessel s4 James Allen engaged was the Vessel he brought in here as Prize, and the other Vessel Cap* Grifith pursued but could not come up with her.

(T Did you apprehend that the two Vessels woh bore down upon Cap* Allen would have taken him if Cap* Grifith had not come to his Assistance

Ansr Yes, they were two Vessels of force, one of which had ten Carriage Guns and the other eight and upon the Approach o£ sa Cap* Grifith and upon his firing a Broadside upon one of them they Seperated and were parted, one of wch afterwds the sa James Allen Pursued and took.

Q* Did you after the agreement keep Company with each other

Ansr Yes and spoke wth Each other every day to the time we met with sa Vessels as afores4 Ques*3 by the Respts

Qu How long was it before Cap* Grifith ask’d that Question of Cap* Allen to be in Consort

Anr The Morning of the 30th of March 1744 before the Pilot left the sa Cap* Grifith

<2* was you so near to the Bar of New Providence as to see it

Ansr yes

Q* Did you hear any body else answer ay ay besides Cap* Allen.

Anr No

Q* Did- you hear any of Cap* Allens Officers or men consent to this agreement

Anr Yes by giving three Hurra’s

<2* Did you know of any written agreement between the sa Cap* Grifith and Cap* Allen or hear of any

Anr no

<2* How do you know this Vessel brought in here by Cap* Allen as prizes was the Vessel you see him pursue

Anr by the Make of the Vessel and by information of the sa Allens Crew

<2* Did you see Cap* Allen take this Vessel

Anr No, by reason we gave chace to A Vessel that was in company w*11 the sa Vessel Cap* Allen took

Tho Doughty

Mr Benjn Trip Comp3 Qr Master of Cap* Allens Vessel was sworn

Quest. Have you any knowledge of any agreement of consort ship between C: James Allen and C: John Grifith on or about the 30th of March either Verbally or by writing

Ansr Yes I heard them talk of Consorting by word of mouth

Q* Cap* Grifith ask’d Cap* Allen how he Did after they was over the Barr of N: Providence and ask’d him whether they were consorted, Cap* Allen ask’d him how the said Grifith replyd man for man and Gun for Gun and Cap* Allen reply’d Ay Ay, and at that time I understood that they were consorted

<2* Was there any Officer or man on board that objected to this Agreement

Anr No and I understood they all consented to it

Q* How long did you keep Company after this Agreem*

Ansr Several Days

Q* How came you to Part

Ansr In chace of two Vessels of force one of which the sa Allen pursued and took and the Other Cap4 Grifith Pursued

Qj6 Did you ever hear Cap4 Allen say that Cap4 Grifith and his Crew were concern’d in this Vessel which he took

Ansr No, but I heard him say he sa be very glad if them writings of Consortship w411 Cap4 Grifith had been compleated, which Cap4 Grifith was to have got done but as they were not done the said the Consortship was void.

Qf Where was it you first heard Cap4 Allen and Cap4 Grifith talk of Consortship by writings

Anr About the last of march 1744 on board of C: Allens Vessel and Cap4 Allen disagreed alledging they were both so poorly stock’d with Provisions and afterwards about the 4t!l or 5th of April following the sa Captains had farther talk of sa Consortship by writing at the Bimenes several little Islands of the Bahama’s and a few days after that the sa Captains talk’d of sa Consort-ship at Vrsule, when Cap4 Grifith Propos’d to sa C. Allen again to have writings of Consortship to which the sa Cap4 Allen Consented and told sa Grifith he wa have Him go on board and get them wrote and bring them on board his Vessel and If he and his Compy liked them they wa sign them, which sa Cap4 Grifith did not. all which was before they chaced the sa Vessels before mention’d, and that the sa Cap4 Allen told Cap4 Grifith that Otherwise if they took any Vessels in the presence of each other that the law would consort them

Q* What Quantity of Provisions had the Two Vessels commanded by Cap4 Grifith and C: Allen

Anr I understood by Cap4 Grifith who told Cap4 Allen that he had about six weeks or two month Provisions and for no longer

Benjamin Trip

John Freebody Esqr was sworn

Qf What stock of Provisions had Cap4 Allen when he came home

Ansr About a third of his Provisions which I think might be sufficient for two Months Cruise

Q* Have you had any conversation with Cap4 Grifith or his Officers and what

Ansr When Mr Clement Stanton came home who was Master of the Sloop Coma by Cap4 Grifith he was saying that he heard before he came from Providence that Cap4 Allen had taken a Prize which he expected to have his share of, but he did not find that he was like to have any part, altho Cap4 Allen and Cap4 Grifith Concerted, I ask’d him how they were consorted if there was any articles of Agreem4 between them written, and signed he answer’d no but said Cap4 Grifith got some agreement of consortship written on ba his Vessel at Vrusall but they were never sign’d by either Party and I ask’d him w4 the Contents of that Instrum4 was; he sa if they went out and took any Prize together that then the Prize so taken was to be divided betweean each Vessels company's and if they Parted or separated and took any Vessel out of sight of each other that then what each Vessel took was to be their own, I told sa Stanton that as to the Consortship I believ’d there was nothing in it in as much as there was no writings drawn and in further discourse with Cap4 Stanton since this suit has been brought on Ag4 Cap4 Allen I told Cap4 Stanton all the design of that consortship was only for such Prizes as was taken by them together if the Agreement had been signed for if they Parted then what each Vessel took was to be their own and the other to have no Part thereof, Cap4 Stanton replyd it was so if the Parting was Accidentally and I further told Cap4 Stanton that I had been informed that Mr Thompson Cap4 Grifith his Lieu4 had said since he came home that he never consented to any consortship for he knew Cap4 Grifiths Instructions was such that they restricted him from consorting w4]1 any Vessel then Mr Stanton said that Cap4 Grifith never ask’d Mr Tompson nor none of his Officers to Consort with Cap4 Allen and I told Cap4 Stanton this was a fine way of consorting for you wa hold Cap4 Allen and Company to give up Part of their Prize to Cap4 Grifith, but if Cap4 Grifith had taken a Prize and Cap4 Allen none if Cap4 Allen had demanded Part of any Prize taken by Grifith by saying he had consorted with C: Grifith your company would say with a good deal of Justice Cap4 Grifith cannot bind us to give away any of our Prize as we never consorted he had only right to give away his own share. I dont remember that Mr Stanton made any reply, so the discourse broke off J°hn Freebody Junr

The Court was Adjourn’d untill three in the afternoon The Court was Opend. Mr Clement Stanton Mr of C: Grifiths Vessel was Sworn

Q* Have you any knowledge of any Consortship between Cap4 Grifith and Cap4 Allen

Ansr Yes, when they were in Providence they had some talk of it, and we waited there two days untill he had water’d after we came over the Bar we hal’d our Jibb sheet to windward untill Cap4 Allen came up when Cap4 Allen came up Cap4 Grifith hale’d him and ask’d him if they were consorted, and I think it was Cap4 Allen Answer’d ay ay but am not certain and Cap4 Griffith said According to the old Custom man for man and Gun for Gun and then the sd Allen reply’d AY AY. upon which the Ships Company gave Three Chears.

Q* Did you keep any Journal and did you make any entry of this Affair in it

Anr Yes and made an Entry of sd Agreement in my Journal A copy of wch Entry is now on Court

Q* How long did you keep Company with Cap4 Allen after this Agreement

Ansr About fourteen days during which time we went to the Bimines where the sd Allen wooded and for whom we waited s4 or 48 hours

Q* What was the Occasion of Parting wth Cap* Allen

Ansr We met two Vessels coming right for us they fired at Cap* Allen and afterwards fired at us, one of which bore away and was pursued by Cap* Allen the Other hal’d her wind and Cap* Grifith gave chace to her and could not come up with her

Q* Do you Apprehend that it was the Approach of your Vessel which Occasion’d those two Vessels to Part

Ansr Yes

Q* Do you Suppose these Vessels wa have taken Cap* Allen if you had not come to his Assistance

Ansr Yes they being Vessels of force one of wch carrying ten Carriage Guns and the other Eight

Q* What Conversation pass betw11 C: Grifith and C. Allen from the time of Your going to the Bimenes untill the time you gave chace relating the Consortship.

Anr We Proceeded to Vrusall where we Scrub’d and Boot top’d when we was ready to sail there was a letter writ and put into A Bottle woh I understood was to find one Another in case they lost Company and Cap* Allen came alongside in his Barge about the io*h of April for Cap* Grifith to go on shore w*11 him where they might hide A Bottle that they might know where to find it, when he came on board again we came to sail

Q* Did you know anything of A Written Agreement

Ansr Mr Fox the Capts Quarter Master told me he had wrote one but I never see it

Q* By whose order was that Agreem* wrote

Ansr I Suppose by the Cap*3 Order but did not hear said order given

Q* For what end was that Agreement written

Ansr For A Consortship as I understood

Q* Do you know this Vessel that Cap* Allen brought in here as prize is the same Vessel you see him chace

Ansr Yes.

Q* Was Cap* Grifiths Vessel Present at the taking sa Vessel

Ansr No.

Q* How long was you consorted for

Anr I heard no mention of time made but that it was for the Cruise as I understood

Q* Did you understand the Agreement Mr Fox drew was a New Agreem* or to confirm the former Agreem* made after coming over the Bar

Ansr I understood it was to confirm the former Agreem*

Clement Stanton

Mr Jonathan Sabine A Marineer on ba C: Allen being Sworn

Q» Have you any knowledge of any Consortship between Cap* Grifith and Cap* Allen

Ansr We went into Providence the 25th of March and whilst we were there I heard some talk of Consortship between Our People and Cap4 Grifiths, that they were to Consort when we came to Sea wcl1 was not agreed on at Providence because Majr Stuart who I Understood had the care of Cap4 Grifiths Affairs Opposed it; after we got over the Barr at N. Providence Cap4 Grifith shortned sail and we came up wth him, when some Person I think Cap4 Grifith ask’d if we were consorted, Ay Ay was Answer’d from our Vessel I think by the Master Cap4 Allen being upon Deck

How long did you Continue in Company after this Agreem4

Ansr About 14 Days and during woh time we went to the Bimenes and got wood there and where sa Grifith waited for us as I Understood it

Qn What was the Occasion of you Parting

Anr We met two Vessels standing for us and upon their coming up fired at us and after some time Cap4 Grifith Came up upon whose approach the One Stood to Windward and the other to Leward and then they Parted.

Qn Do you think those Vessels wa have taken Cap4 Allen if Cap4 Grifith had not come to his Assistance

Anr I cant tell but one of sa Vessels had ten Carriage guns and the other Eight one of whom we Pursued and took the Other Cap4 Grifith Pursued

Qn At the time of this Engagm4 did you Suppose the Companies of each Vessel was to have their Proportion of what was taken

Ansr I understood they were Consorted

Qn Do you know of any Agreement made between Cap4 Allen and Cap4 Grifith for Consortship By word of Mouth or writing

Ansr No Otherwise that I have before said

Qn Did you Understand they were to keep together

Ansr Yes

Qn Did you understand if either of these Vessels took any thing Separate from each other that it was to be divided amongst them

Ansr I understood from Cap4 Griffiths People at N. Providence that as their Vessel could'outsail Cap4 Allens that if they took anything out of sight of our Vessel that we should have no right to it

Qn Have you not Reca your share in this Prize so taken

Ansr Yes.

Qn Do you think that Cap4 Grifith is Entitules to a Part of Sa Prize

Ansr When Cap4 Allen took her I did expect he was

Qn Was Cap4 Grifiths Vessel in sight when sa Vessel was taken by Cap4 Allen

Ansr I cannot tell if she was or not Some of the People on board our Vessel sa that there was nothing but a Verbal Agreement and that was not good in Law, and did not know But that there was A Written agreem4 untill after We took the Prize

Jona Sabin J’

Adj’d untill thursday next 9 o the Clock

The Court was Open’d when a Prohibition was Served on the Court by the Town Serjeant untill fryday the 16th of Novr 1744 as follows

The Court was Adja untill Saturday next 9 o the Clock A M

The Court was Adja untill Saturday the 8411 Xber

The Court was Adja untill June the 8th 1745

Colony of Rhode Island etc. ss George the Second by the Grace of God of Great Britain France and Ireland King and Defender of the Faith etc.

To Leonard Lockman Esq. Judge of our Court of Vice Admiralty in the Colony aforesaid, and to the Register and Marshall of the Same, or their Deputies.

Whereas James Allen of Newport in the County of Newport and Colony aforesaid Mariner, Commander of the Sloop Revenge a Private Man of War belonging to said Newport, by Matthew Robinson his Attorney has represented unto The Honble William Greene Esq. Governour, the HonbIe Joseph Whipple Esq. Dep4 Governour, Benjamin Hassard, William Ellery and Daniel Coggeshall Esqrs Assistants of the Colony aforesaid, and Justices of our Superior Court of Judicature held within the Same, That John Griffith of Newport aforesaid Mariner Commander of the Sloop Cesar a Private Man of War belonging to said Newport, in behalf of Himself, his Owners and Sloop Company, has preferred a Libel in our said Court of Vice Admiralty against the said James Allen, For the Recovery of Damages, For the Share, Part and Proportion belonging to Himself, his Owners and Sloops Company of and in a certain Sloop called the Fortune her Cargo and Appurtenances taken by the said James Allen on the High Seas, and the Property of the Subjects of the King of Spain, pursuant to an Agreement or Consortship between the said James Allen and the said John Griffith, and on the Eighteenth Day of May last past a Decree was pass’d by the said Leonard Lockman Esq for the Condemnation of the said Vessel and Goods to the said James Allen for himself his Owners and Sloops Company (in the Absence of the said John Griffith), And the said James Allen by his Council took his Exceptions to the Jurisdiction of our said Court of Vice Admiralty viz (ist) For that the Place where the supposed Agreement is alledged to be made, appears on said Libel and was (if there was any at all) made at the Bahama Islands infra Corpus Comitatus. (2ndly) For that the said John Griffith sues for Himself, his Owners and Compa for his Share of said Prize and Goods as Damages due to Him, upon the said James Allen’s supposed Breach of Agreement, when the said Court of Admiralty is no Court of Record, and cannot give Damages. (3) For that the said Court of Admiralty cannot try Property otherwise than is express’d and allow’d by the Laws and Statutes. All which Pleas were overruled, And there appearing to our aforesaid Justices upon this Representation to be sufficient Matter for a Hearing on the Premises.

We do therefore prohibit and forbid you the said Leonard Lockman, or any other officers of our said Court of Vice Admiralty from proceeding any further in the aforesaid Case or pass any Decree concerning the Same, Unless good Cause can be shown to our aforesaid Justices, or other the Justices of our said Superior Court of Judicature on Friday next being the Sixteenth Day of said Month of November instant at ten of the Clock in the Forenoon of the said Day, at the Colony House in Newport aforesaid, Why the said Court of Vice Admiralty ought to have Jurisdiction concerning the Premises aforesaid, Witness William Greene Esq., at Newport this Fourteenth Day of November in the Eighteenth Year of our Reign Annoq Dm 1744.

James Martin Cler.

To the Sheriff of the County of Newport aforesaid his Deputy, or any other proper Officer.  