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<DATE>2008-0X-XX</DATE>
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<NAME>John Pas</NAME>
<RESP>MURP</RESP>
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<IDG S="marc" R="UM" ID="B02578">
<STC T="W">C911B</STC>
<BIBNO T="oclc">53298983</BIBNO>
<VID>179760</VID>
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<DIV1 TYPE="text">
<PB REF="1">
<HEAD>The Ca&s;e of <HI>Elizabeth Fenton</HI> Widow, the Relict and Admini&s;tratrix, of <HI>Richard Fenton</HI> Gent. decea&s;ed Re&s;pondent to the Petition of <HI>William Crabb</HI> and <HI>Tho. Gold&s;mith</HI> Appeal|ants, Humbly offered to the Con&s;ideration, of the Right Honourable the Lords Spiritual and Temporal in Parliament A&s;&s;embled.</HEAD>
<P>THE &s;aid <HI>Richard Fenton</HI> being Owner of the &frac38; parts of the Ship <HI>Rainbow</HI> of <HI>Bri&s;tol,</HI> whereof <HI>William Crabb</HI> and <HI>Thomas Gold&s;mith,</HI> (now Appealants from a Decree of the High Court of <HI>Chancery</HI>)And <HI>Richard Crabb, Alexander Gray,</HI> and <HI>Henry Haines,</HI> had each of them one 8th. part. They together in the year 1655. let the Ship to Freight, on a Voyage to <HI>Virginia;</HI> which &s;he performed, and returned &s;afe to <HI>Bri&s;tol,</HI> where the Appealants and <HI>Richard Crabb</HI> received her Freight, and other Profits ari&s;ing by the &s;aid Voyage, &frac38; parts whereof Apper|tained to the afore&s;aid <HI>Richard Fenton.</HI></P>
<P>The &s;aid Part-Owners gave no Account of the afore&s;aid Frieght and Profits to the &s;aid <HI>Fenton,</HI> but in&s;tead thereof &s;et forth the &s;aid Ship a &s;econd Voy|age to <HI>Virginia:</HI> Whereto &s;he was Freighted, and &s;et Sail, made her <HI>Voyage,</HI> and returned &s;afe; but before &s;uch her return the &s;aid <HI>Richard Fenton</HI> dyed inte&s;tate. After who&s;e decea&s;e Letters of Admini&s;tration of his Goods and Chattels were granted to <HI>Elizabeth</HI> his Wife, whereby &s;he became ju&s;tly intituled to all his Per&s;onal E&s;tate. And particularly to &frac38; parts of the Freight of the Ship <HI>Rainbow,</HI> for the afore&s;aid two Voyages. All which the &s;aid Part-Owners Received.</P>
<P><HI>Elizabeth Fenton</HI> demanded her Husbands and Inte&s;tates proportion of the &s;aid Ship, for the afore&s;aid Two Voyages from the Appealants, and other the Part-Owners; who refu&s;ed to Accompt for the &s;ame, pretending that one <HI>Stafford</HI> was imployed by all the Owners, to Let the &s;aid Ship and receive the Freight thereof, which he had done, and therefore was onely Accountable for the &s;ame. And thereupon prevailed with the &s;aid <HI>Elizabeth Fenton</HI> to referre the afore&s;aid matters in controver&s;ie to Arbitration. And Arbitrators for that purpo&s;e were appointed, before whom (when the &s;aid <HI>Elizabeth</HI> was ab&s;ent, and could not Attend) the Books of Account of the afore&s;aid <HI>Stafford</HI> were produced, relating to the afore&s;aid Ship, and two &s;everal Freights. And they thereupon (by &s;urprize upon the &s;aid <HI>Elizabeth Fenton</HI> made their Award, whereby they directed and ordered only 14 l. to be paid her for her proportion, of the Profits and Freight of the afore&s;aid two Voyages, (when there was 1000 l. due.) And the Appealants having Lett out the Ship a third Voyage, at 24 l. 7 s. 6 d. <HI>per Month.</HI> in which Voyage &s;he continued about 16 <HI>Months.</HI> Attached the &s;aid <HI>Fentons</HI> proportion thereof to com|pell her to &s;ubmit to the &s;aid Award.</P>
<P>Thereupon &s;he preferred her Bill in the High and Honourable Court of <HI>Chancery,</HI> <NOTE PLACE="marg">Hillary 1660.</NOTE> to have an Accompt of the &s;aid three Voyages, and to &s;et a&s;ide the undue Award made as afore&s;aid, which cau&s;e came to be heard 12 <HI>July</HI> 17 <HI>Car. nunc.</HI></P>
<P>Whereupon the afore&s;aid Award was &s;et a&s;ide, and Account directed to be taken by a Ma&s;ter, who (being a&s;&s;i&s;ted by Merchants) after Examination of Witne&s;&s;es, and hearing Council, reported, 747 l. 16 s. 6 d. due to the Re&s;pondent, <HI>Elizabeth Fenton.</HI></P>
<P>The Appealants prevailed for a Reference, upon which the Report afore&s;aid was confirmed, and afterwards decreed, and the decree Signed, and En|rolled.</P>
<P>Whereupon the Appealants and <HI>Richard Crabb</HI> afore&s;aid, brought their Bill of review, a&s;&s;igning the &s;ame Errors they now do in their Appeal to this mo&s;t Honourable Hou&s;e, upon which they obtained an Order that paying 247 l. 16 s. 6 d. And &s;ecuring 500 l. more (remainder of the 747 l. 16 s. 6 d. decreed) all proceeding upon the &s;aid Decree &s;hould be &s;tayed.</P>
<P>To which Bill of review the &s;aid <HI>Elizabeth</HI> put in her An&s;wer, and Witne&s;&s;es being thereupon examined, and publication pa&s;t, the Cau&s;e al&s;o came to be heard on the 22 <HI>April</HI> 22 <HI>Car. nunc.</HI> Upon which hearing the Court propo&s;ed, That the &s;aid <HI>Fenton</HI> &s;hould go back to the fir&s;t Referrees to review the account. Or that &s;he &s;hould pay back the 247 l. 16 s. 6 d. afore&s;aid (which was impo&s;&s;ible for her to do) And then the Court would name new Re|ferrees.</P>
<P>The &s;aid <HI>Elizabeth Fenton</HI> being nece&s;&s;itated to make Choice of One of the&s;e two propo&s;als, cho&s;e to go back to the former Referrees, who made their &s;econd Award without hearing the Re&s;pondent, which was afterwards &s;et a&s;ide al&s;o; and a &s;econd referrence made to a Ma&s;ter to take an Account of the afore&s;aid three Voyages, which referrence being transferred to Sir <HI>John Coell</HI> be proceeded therein, and 10 <HI>April.</HI> 1675. made his Report, That the Re&s;pondent declaring her unwillingne&s;s that <HI>Stafford</HI> &s;hould be imployed, and that the Appealants had promi&s;ed &s;he &s;hould have a ju&s;t Account of the afore&s;aid three Voyages, and that no wrong &s;hould be done her, but that &s;he &s;hould receive her proportion of the Profits of the &s;aid Ship, And that the Appealants undertook the management thereof; after which he proceeded upon the &s;aid Accounts, &s;tated the &s;ame, and Reported above 500 l. due to the Re&s;pondent <HI>Elizabeth.</HI></P>
<P>The Appealants procured a new Referrence, <NOTE PLACE="marg">July 23, 1675.</NOTE> with Order, that the afore&s;aid <HI>Stafford</HI> &s;hould be Examined, which was done accordingly: upon which, the &s;aid Ma&s;ter made another Report, and made &s;ome further Abatement by the Re&s;pondents con&s;ent in order to an Accommodation.</P>
<P>To which Report, though in their Favour, the Appealants took Exceptions.</P>
<P>The &s;aid Exceptions coming to be Argued, <NOTE PLACE="marg">Feb. 26.27 Reg. nunc.</NOTE> the Lord Chancellor approved, and Confirmed what the Ma&s;ter had done in Rejecting <HI>Staffords</HI> Evi|dence; and upon &s;ome of the Exceptions, referred it back to the &s;ame Ma&s;ter, who having the A&s;&s;i&s;tance of many Eminent Merchants in <HI>London,</HI></P>
<P>Made his Third Report; <NOTE PLACE="marg">May 25, 1677.</NOTE> To which the Appealants excepting, many Hearings were thereupon had, and a Re-referrence made, with Direction for the &s;aid Ma&s;ter to State the Particulars of the Account, with the Values of the Cargo; which being done, he made his Fourth Report, and thereby certified 555 <HI>l.</HI> 8 <HI>s.</HI> 5 <HI>d.</HI> &frac12; due to the Re&s;pondent. To which Report, the Appealants al&s;o Excepted.</P>
<P>The Exceptions being Argued, <NOTE PLACE="marg">Feb 20, 1678.</NOTE> were Over-ruled; and the Report confirmed by Decree of the Court, &s;ince Signed and Inrolled.</P>
<P>From which Decree, after Twenty Years proceeding in Chancery, and above 1000 <HI>l.</HI> Charges &s;pent by the Re&s;pondent, by the Appealants Vexa|tious Pro&s;ecution (to Her, and her five Childrens Ruine) the Appealants for further Vexation, have Appealed from the Decree pronounced upon the a|fore&s;aid Bill of Review, above Ten years &s;ince; Alledging,</P>
<P>That the Award afore&s;aid is &s;et a&s;ide by Surprize, <NOTE PLACE="marg">Fir&s;t.</NOTE> without con&s;ent of Parties or proof of any undue Means u&s;ed in obtaining thereof.</P>
<P>That the Appealants, <NOTE PLACE="marg">Secondly.</NOTE> <HI>Gray</HI> and <HI>Haynes</HI> two of the Part-Owners in the &s;aid Ship <HI>Rainbow,</HI> were no Parties to the Decree; Neverthele&s;s the Sum Reported due to the Re&s;pondent, is Decreed to be paid by them; Therefore, and fora&s;much as <HI>Staffords</HI> Evidence was &s;uppre&s;t, and the Decree made only again&s;t the Appealants, who were but two of the five Part-Owners, with the &s;aid <HI>Richard Fenton</HI> in the &s;aid Ship: And Fora&s;much as they Received never one peny of Money for the Freight of her, for the fir&s;t two Voyages, but only for the Third, for which they were ready to Account.</P>
<P>Therefore pray a Rever&s;al of the afore&s;aid Decree.</P>
<P>But the Re&s;pondent humbly Hopes for, and Prays the Ju&s;tice of this mo&s;t Honourable Hou&s;e and then doubts not but to be Di&s;charged from this Su|pream Court, and receive all Co&s;ts for the Charge and Vexation &s;he is put unto.</P>
<P>And, For Rea&s;ons for Di&s;mi&s;&s;ing the Appealants Appeal, this Re&s;pondent Humbly Offers.</P>
<P>That all the proceedings in the High Court of Chancery, have been and are Ju&s;t and agreeable to Equity; and &s;uch as again&s;t which the Appealants ought not to expect Relief.</P>
<P>Becau&s;e by Sir <HI>John Coells</HI> Report, <NOTE PLACE="marg">Fir&s;t.</NOTE> It Appears, the Appealants did them&s;elves undertake and agree to Account for, and make Good what &s;hould be due to the Re&s;pondent for the Freight afore&s;aid, and &s;o no need to make other Parties which otherwi&s;e would have been done.</P>
<P>It Appeared, <NOTE PLACE="marg">Secondly.</NOTE> the Awards before-mentioned were obtained on Fal&s;e Allegations, and by Surprize; And (as &s;o procured) were ju&s;tly &s;et a&s;ide.</P>
<P><HI>Staffords</HI> Evidence was &s;et a&s;ide for very good Rea&s;on, <NOTE PLACE="marg">Thirdly.</NOTE> it appearing he had &s;worn an Account to be Peru&s;ed and Allowed by the Re&s;pondents Husband, whenas by Sub&s;tantial Evidence it was made Appear, that he was Dead long before the Account was Writ; be&s;ides other Fal&s;ities,</P>
<P>Upon the whole Matter, the Re&s;pondent Humbly layes her &s;elf, and five Fatherle&s;s Children, with this her Sad and Deplorable Condition, at your Lord&s;hips Feet; And &s;ubmits it to your Grave Judgment and Serious Con&s;ideration.</P>
<P>Whether, After two &s;everal Decrees of the High Court of <HI>Chancery,</HI> and Twenty Years Litigation, meerly upon Matters of Account <GAP DESC="illegible" EXTENT="1 word"> where Ma&s;ters have &s;ince the Decree been Attended above 100 times upon tho&s;e Accounts, and no Exceptions all that time taken to the Decree, nor any Appeal to this Honourable Hou&s;e from the &s;ame, till after four &s;everal Reports made, and tho&s;e duly Confirmed; (after Exceptions put in thereto by the Appealants, were Argued) Whether, after all the&s;e Solemn proceedings, The Appealants, now finding that they are to pay this Re&s;pondent Money, (though not half &s;o much as the Charges &s;he hath been put unto for Reco|vering the &s;ame) They &s;hall be admitted to Appeal to this mo&s;t Honourable Hou&s;e to be Relieved, again&s;t a Decree to which them&s;elves have &s;ubmitted by all their Sub&s;equent proceedings before the Ma&s;ter in that Court; Whereas if there had been any Ju&s;t Cau&s;e of Complaint again&s;t the &s;aid Decree, they might have Appealed from the &s;ame before their proceeding to Account, which (it is Humbly Conceived) is no le&s;s than a Submi&s;&s;ion to the &s;ame, and owning it to be Ju&s;t.</P>
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