WHEREAS heretofore on the 14th of October, Anno Domini 1726. Solomon de Medina, Mosesson and Company, Roderigo Pacheco, Jacob De Lara and Manuel vaz de Costa, Complainants, Exhibited their Bill of Complaint into this High and Honourable Court of Chancery against Hester Fresneau, Peter Morine, Mary Morine and Judith Jamain, Executors of the last Will of Andrew Fresneau, deceased, and against Rene Hett, Defend­ants, thereby setting forth.

I. Charge. That in the Month of March in the 5th year of King George, Capt. Jacobs of the Diamond Man of War, took and brought into the Port of New-York, the Ship Victory, belonging to the India Company of France, & commanded by Capt. Christopher d' Rossel, having on board, amongst other things, 2217 Bags of Tobacco in Snuff, and sundry quantities of Tobacco in Rolls & Hands, great part whereof had been loaded at the Havana for the King of Spain, then an Enemy, to be delivered at Cadiz in Spain, on payment of 13000 Pieces of Eight, Freight. Which Tobaccoes the said Capt. Jacobs Libelled against, as Lawful Prize in the Court of Admiralty of New-York, and against many other Goods in the said Libel mentioned, and the Suit there Depedned till the 26th of October, 1721▪ when it was by the said Court Decreed, That the Tobaccoes & Goods aforesaid, be acquitted and discharged from the said Caption, from which Decree Capt. Jacobs appealed to the High Court of Admiralty of Great Britain: Whereupon, by Order of the Court of Admiral­ty of New-York, the said Tobaccoes were deposited in the hands of the said Andrew Fresneau and Rene Hett, upon security to pay to Capt. Jacobs the apprized value thereof, or return him the Tobaccoes, in case the Decree should be Reversed, as by the Proceedings in the Admiralty, referred to, appears.

[Page 2] II Charge. That Hett and Fresneau, by their Letter to the India Company of France, dated the 22d Day of March, 1721-2. acknowledged they had received in all 1998 Bags of the said Tobaccoes, in Snuff, weighing 379845 Pounds, also 108 Rolls of Tobacco weighing 14309 l. Also, of Leaf Tobacco 9628 Pounds, Damaged and Undamaged. That the said Decree being Confirmed, the India Company acquainted the King of Spain, that he might dispose of his said Tobaccoes, paying them their Freight and Charges; whereupon Mons. Lawles, Ambassador of the King of Spain, in France, by orders from his Master, ad­justed the Pretensions of the India Company for Freight and Charges at 15365 Pieces of Eight and two Rials; and by his Letter dated the 6th of February, 1725. Ordered the India Company to give their Directions for the Delivery of the Tobaccoes to the Complainants, Medina and Company, who would pay the Sum agreed on. Pursuant to which Letter, by Articles of Agreement at Paris, dated the 8th of May, 1725. the said Sum was secured to be paid to the India Company, as also all the Charges of the Prosecution of the Ap­peal, and the India Company thereby agreed to give directions to the said Hett and Fresneau to deliver the said▪ Tobaccoes to Medina and Company, or their Orders, being Reimbursed all the Charges they had been at, which should not be found to be comprehended in the aforesaid Account of Charges, and paying them the Commissions that should be due to them. And to put Medina and Company in a way to cause Hett and Fresneau to account for the Tobaccoes, the India Company delivered the Letters and Accounts of Hett and Fresneau concerning them; Which Agreement the bearers of the Orders of Medina and Company were to accept of at New-York, otherwise it was not to be in force. And accordingly the same day the India Company, by Letter to Hett and Fresneau did Direct the delivery of the said Tobaccoes to the bearers of the Orders of Medina and Company; & to make no difficulty therein upon their acceptance of the said Agreement, and paying them their Charges and Commissions.

III. Charge. That Medina and Company, by their Letter subjoyned to the India Com­panys, direct the Delivery of the Tobaccoes, to the Complainants, Roderigo Pacheco, Jacob De Lara, and Manuel vaz de Costa, bearers of the said Letters. That on the 17th of November, 1725. the said bearers delivered the said Let­ters to the Defendant Rene Hett, (Mr. Fresneau being dead) who in the presence of a Notary, accepted thereof, and promised Compliance there-with, if the bearers would do what on their part was to be done; and accordingly the said bearers did, before a Notary, on the 19th of said November, accept of the said Articles of Agreement, and promise what on their part was to be done, as by an Act of Richard Nicholls, Notary, signifying the same acceptances and promises, referred to and proffered, might appear; which Promises and Accept­ances, by the Law of Merchants, obliged Performance by each party to the other.

IV. Charge. The Bill then Charges, That on the bearers desire of the Defendant Hett's [Page 3] Account of Charges and Commissions, he told them, It came to about Fourteen Hundred Pounds, but refused to show them any Account for what, and told them, if it was not paid in three days, he would protest against them, and not deliver the Tobaccoes. Which behaviour in demanding of so great a Sum in so short a time, and denying to show for what, so contrary to the Custom of fair Merchants, surprized the said bearers, and brought them into a great strait. That on the 25th day of November aforesaid, the day insisted on for payment of the said Sum, the bearers, in the presence of the Notary, Counted out the said Fourteen Hundred Pounds, to the Defendant Hett, who then did, and not till then would, show his Account; the Ballance whereof amounted to 1397 l. 18 s. 3 d which Sum he then received and gave his Receipt for it.

V. Charge. The Bill further charges, that the Account is extravagant, false & fraudulent, in the greatest part of the Articles thereof. And that tho' three times as much as the Commissions due, were therein Charged, yet no sooner he Received the said Sum, but he trumped up a new pretence, and showed a Bond of 1500 l. with condition to pay Five Pounds for every Hundred Pounds worth of Snuff he should deliver, to be computed at the rate of Eleven Pence per Pound, tell­ing them, they must execute that or they should have no Snuff, but if they would, they might begin to weigh to morrow, whereupon the bearers executed also that Bond.

VI. Charge. That afterwards, the said Hett delivered to the bearers 1691 Bags of Snuff, great and small, damaged and undamaged, weighing 315400 l. and a half, 101 Rolls of Tobacco, weighing 10412 l. and no more, as by the deputy Weigh-Masters Certificate appears, and then said, he had no more to deliver, when by his Account to the India Company, there remained undelivered 307 bags of Snuff, weighing 64424½ Pounds, 3875 Pounds of Tobacco in Roll, and 9628 Pounds in Leaf Tobacco, and upwards, which he still denyed to deliver, and therefore on the 9th of March there-after, the bearers, in the presence of the Notary, de­manded it of him, and upon his denyal, protested, according to the Custom of Merchants, in the like case.

The Bill then objects, first in general, and then to particular Articles of the Defendant Hett's account, affixed to the Bill, which Articles thereof objected to, are as follows.

[Page 5]Which Objections Charged, are in Substance,

VII. Charge. 1. Objection, That this Account was no ways conformable to the Accounts that had been kept of the said Tobaccoes (which the Complainants pray to be produced) but that the same was lately framed and devised by the De­fendant Hett, and Abraham Governeur.

VIII. Charge. 2. Object. That the Complainants have often, in a friendly manner, requested the Defendant Hett, to come to a fair account, and to leave their Differences to Merchants, but that he absolutely refused so to do, and instead thereof, put the said 1500 l. Bond in Suit, and caused the Complainant Pacheco, to be taken and arrested thereon.

IX. Charge. 3. Object. That D' Rossel left Money or Goods in the hands of Hett and Fresneau to bear the Charge of the Defence of the Tobaccoes, and to pay the Articles of his Debts.

X. Charge. 4. Object. That the Law Charges were as well expended in Defence of the French Goods, as the Spanish Tobaccoes, and therefore the Charges ought to be proportional.

XI. Charge. 5. Object. That the Articles of D' Rossels Debts could not be chargeable on the King of Spain's Tobaccoes.

XII. Charge. 6. Object. That Many and great parts of the Articles were Extravagant, and not paid by Hett nor Fresneau, and that some of their Reciepts were much more than what they actually paid.

XIII. Charge. 7. Object. That the 35 th, 36 th, 37 th & 38 th Articles by the face of the Account, appear to be Imbezlements, and are placed on both sides of the Account, by means whereof 17 & half per Cent. Commissions are charged for making these Imbezlements.

XIV. Charge. 8 Object. That many of the Payments pretended to be made, not being [Page 6] made, the 44 th Article of 5 per Cent. Commissions for paying, ought to be reduced to the Sums actually paid.

XV. Charge. 9. Object. That Commissions of 5 per Cent. for Receiving, and of 5 per Cent. for delivering the Snuff were not in this case, of a Deposit done either by the Laws of England, the Law of Nations or of Merc [...]nts. That as to the two & half per Cent. Commissions of Storeage, they objected not, nor to what might be reasonable for any Trouble or Pains that has been taken about the Snuff; and if Store Rent exceeded the Commissions of storeage, they had no Objection against allowing what it so exceeded them.

XVI. Charge. 10. Object. That the Sales of the Tobaccoes and Snuff, so deposited as aforesaid, were so many Frauds & Breaches of Trust, & the more Fraudulent for that they accquainted not the India Company of the making of them; but after the greatest part of them were made, drew Bills of Exchange upon the India Company for the Charges they had been at, and desired leave to sell, which was refused them, but the Company promised to reimburse them their Charges; and their Sales being unlawful, they ought not to have Rewards for committing these unlawful Acts.

XVII. Charge. 11. Object. That when the Quantity of Snuff delivered to the Complain­ants (315382½) and the Quantity for which Credit is given, as sold, taken to themselves, and gifted away (46448) are both substracted from the Quantity of Snuff deposited in Fresneau and Hetts hands (379845) there appears still to be wanting above Eighteen Thousand weight of Snuff, which the Defendants refuse to Account for or deliver, and charge, that greater Quantities of the Snuff have been sold, and for greater Prices than what Credit is given for, and demand the Accounts of the Sales of all, and Credit for the Prices sold for.

XVIII. Charge. 12. Object. That the Defendants had Clandestinely concealed great Quanti­ties of Snuff in Barrels, and other things, in private Places, and had Clandes­tinely shipped off great Quantities thereof in Barrels, and other things, and demand the Delivery of what's thereof in their power, and an Account for the rest.

XIX. Charge. 13. Object. That by the Defendants unlawful Sales, they had deprived the Complainants of great Gains by the said Snuff, and that the Defendants had reaped great Profits by trading with the Money arising by these unlawful Sales, to which they are not entituled; but the Price sold for, and the Profits thereof ought to be Accounted for to the Complainants, in lieu of the Snuff it self.

[Page 7]Therefore, and for that the Complainants could have no Remedy herein at Law, being matters of Fraud and Discovery, they prayed the aid of this Court to Compel the Defendants to a Discovery of the Pre­misses, by Answer upon Oath, and to produce the Books of Accounts that were kept of the said Tobaccoes, and to come to a fair Account, & deliver up the said Bond and the Snuff remaining in their hands, and that the Com­plainants might have such other and farther Relief as is agreeable to Equity and good Conscience.

And farther prayed, a Warrant of Injunction to stay Proceedings at Law on the said Bond, and a subpoena to appear and answer the Premisses. Which being granted, and the Defendants served there-with, they appeared, and on the 25th of October, 1726. they were ordered to Answer the Premisses in eight Days, according to the course of the Court; which time being expired, at the prayer of the Defendants, further time was granted them, by the favour of the Court, until the 12th Day of December, there-after. At which time the Defendants filed an Answer, Plea & Demurrer to the said Bill, which Plea and Demurrer came to Hearing on the third Day of February, there-after, when after hearing of the Arguments of the Council of both sides, this Court did conceive the said Plea & Demurrer were not sufficient to barr the Complain­ants of Relief in the Premisses, and therefore over-ruled the same, saving to the Defendants nevertheless, any benefit they could make of their Plea at the hearing of the Cause.

And the Complainants Excepted to the Answer, as Insufficient, and Evading the Discovery of the matters prayed in the Bill to be Discovered, and delivered their Exceptions to the Defendants Clerk, setting forth the Points in which the same Answer was Insufficient and Evasive, in order for the Defendants to Answer to the points defective in Eight Days, according to the course of the Court; which time being elapsed, and no Answer to these Points put in, the Complainants Jacob De Lara and Manuel vaz de Costa, on the 14th of February, made Oath to this purpose, That they came from England hither to receive the said Tobaccoes, and that ever since October, 1725. they have been here without any other business, and have no other business here whatsoever, than the obtaining the said Tobaccoes, and Justice in this Cause. And the Complainant Pacheco, made Oath, That he had pressing Affairs in Europe, which required his Presence there, and that he had put his Affairs in order here for Departure, Except only the obtaining the said Tobaccos and Justice in this Cause. And the said De Lara, De Costa and Pacheco having, by their Petition (with Affidavits to the purpose aforesaid, thereunto annexed) set forth to this Court, sundry Causes that induced them to believe the Defendants affected delay in this Cause; That Delay of Justice in this cause, in their Cir­cumstances, might prove as prejudicial to them, as the Denyal thereof: That great Delays were commonly used upon the References of Exceptions to Masters, and therefore prayed that their Exceptions might be either heard by the Court without reference thereof, as sometimes has been done to prevent Delays; Or that the Master, to whom they should be referred, might have special Directions for Dispatch. Which Petition and Affidavits were present­ed to this Court on the 14th of February, the Defendants having been first served with Copies thereof, and a Hearing on the Merits thereof, was appoint­ed on the 16th Day of the same Month: At which Day the [...]rits of the said Petition and Affidavits being fully argued and debated by Council of both sides, this Court was of Opinion, that the Complainants Circumstances in­tituled [Page 8] them to the Expediting of Justice in this Cause, and that if need [...], their Exceptions should be heard in Court without reference. But the De­fendants Council admitting their first Answer not sufficient, and denying any Intentions of Delay, and Promising to make a full and perfect Answer, if a Fortnights Time was allowed them for the doing thereof (the same being twice the time allowed for that purpose by the Course of the Court) which time being elapsed, at the Prayers of the Defendants, and further Promises of their Council, to make a full and perfect Answer, further times were allowed till the 20th Day of March, there-after, when the Defendants filed their second Answer; to which the Complainants again excepted, as entirely Evasive and Insufficient. Which Exceptions, being delivered, and no Answer put in to the Points Excepted to, they, by Order, came to be heard in Court on the 5th Day of May, 1727. At which Day, upon arguing and Debating the same, by the Council of both sides, this Court was of Opinion, That the said Answer was very Evasive and Insufficient in many Points, and therefore ordered a further Answer to these Points. Which not being done in the Eight days (the time allowed for it by the course of the Court) and further favour of Time being conceived not due (the Circumstances of the Complainants and long Times before granted on the first and second Answers, being considered) the Defendants were in Contempt of the Court; And there­fore on the 19th of the same Month of May, Attachments issued to take the Defendants for their Contempt: who on the first Day of June, 1727. filed their third Answer. Afterwards, on the same first Day of June, the Defendant Hett, by Affidavit, set forth, That he had discovered some failing in his ad Answer. That the Forty Bales of Snuff, the sale of which Capt. D' Rossel acknowledged to be just, and said in the said Answer, to be part of that for which Credit is given in the Defendants Account, was a mistake, and that he believed it was that Sale of forty Bags sold to pay Coll. Lurting his Store-Rent, before the Snuff was delivered to him and Fresneau, & by Pitition, prayed leave to amend his second Answer, by razing these words out of it (which is part of that for which Credit was given in this Defendants Account.) Wherupon it was Ordered, That the Prayer of the Petition be granted, unless cause sufficient was shown on the 3d of June, to the contrary. At which day the said Petition and Affidavit came to be argued, in presence of the Council of both sides, when the Council for the Complainants produced a Certificate under the hand of the said Coll. Lurting, who is one of the Masters of this Court, that only Twenty Four Bags had been sold to pay his Store-Rent, and from thence concluded, that could not be the Sale of 40 Bags which D' Rossel approved of. That D' Rossel's Letter, by them produced, bearing date eight Months before the King of Spain's Tobaccoes were acquitted by the Admiralty, acknowledging a Sale of 40 Bales of Snuff to be just, was a strong Presumption, that such a Sale was made by them, to whom the approbation was given, and also a strong Presumption, that they had Snuff of his to sell, and that it was not a Sale of the King of Spain's Snuff, because it was then in the Custody of the Court of Admiralty, and so not in their Power to sell any of it: Which com­pared with the proceedings of the Admiralty, by which it appears, that D' Rossel claimed as his own Property, a great Quantity of the 2217 Bags of Snuff Libelled against; That what he claimed, was acquitted about two years before the King of Spain's was, and before his departure from hence; and that there were only 1998 Bags of Snuff Delivered to Hett and Fresneau, as the King of Spain's; and from thence concluded, That D' Rossel had Snuff of his own to [Page 9] leave in their hands, out of which that Sale might have been made. And fur­ther insisted, That it appearing, that at D' Rossel's Departure, they undertook to pay sundry Debts for him, and to be at the Charge of the Defence of the King of Spain's Snuff, it was improbable they would undertake this without his leaving something in their hands to do it with, especially seeing he had enough to leave with them, even of Snuff; and considering how precarious a Fond the King of Spain's Snuff was, to repay them at that time, it being then as likely to be Condemned as Acquitted; and had it been Con­demned, the Difficulty of their recovery of D' Rossel, a Sea-fairing man of an­other Nation; and if acquitted, there could be no reason that the King of Spain's Snuff should pay D' Rossel's Debts. Which compared also with the great Sum allowed the India Company above their Freight, even when the Snuff was not Delivered at Cadiz, as it ought to have been: And from thence in­ferred, That there was a great Probability that D' Rossel left Effects in their hands to pay these Debts and Charges of the Prosecution, and that this Sale of Forty Bales, so approved of by D' Rossel, was a part of what he so left in their hands, and of consequence, Credit ought to have been given for it in the Defendants Accounts, and for all that he so left in their hands, and the rather for that the Defendants still refused to produce their Books of Accounts, tho' expresly demanded by the Bill, and twice since by the past Exceptions to the Answers. Upon the whole, That this was a Discovery accidentally dropt from the Defendants, which has with the utmost Care been endeavoured to be Concealed, and that no part of it ought to be with-drawn, and the rather, in this case, because it is not shown by the Affidavit, that he was surprized into it, and any Reason there appearing, would serve as well to stifle any Perjury, when perceived as this: And as it was an Evidence affecting the Credit of what the Defendant Hett should set forth in his Answers, they had a Right to the Preservation thereof, and the granting the Defendants Petition would be a Depriving them of it; and the rather, it ought to stand, because the Defendants third Answer was still insufficient, and to which the Complainants had Ex­cepted; and so the Defendant Hett would have an opportunity by a fourth Answer, to add what salvo he thought proper to this matter. Upon Con­sideration whereof, and hearing all that could be said by the Council of both sides, the Prayer of the said Petition was then disallowed; Nevertheless, if the Defendant Hett, had not the opportunity of a fourth Answer, and if he would then apply further, the Court would farther consider of the matter. And the Complainants having Excepted to the Defendants third Answer, still as Insufficient and Evasive, in many Points, the 14th Day of June was appointed, by order of this Court, for hearing the said Exceptions. At which Day the same came to be debated & agrued, in the presence of Council of both sides; and the 16th of the same Month was then appointed for a further hearing of the same, when the Exceptions were further Debated and argued by the Council of both sides▪ on each of which Days the said third Answer was found Insufficient and Evasive in sundry Points; and on the said 16th Day, a further Answer was ordered to these Points; To which Points the Defendants filed their fourth Answer on the [...]th Day of June. To all which four Answers the Complainants, on the first Day of July, 1727. re­plyed, offering to prove the Charges of their Bill, and denying the Defendants Defences in their Answers, to be true. And the Defendants being subpoened to Rejoyn, they filed their Rejoynder on the 12th Day of the same Month, denying the Replication, and offering to prove their defences in their Answers. [Page 10] And on the 13th of the same Month, the Defendants were served with a Rule to produce their Witnesses, in order to Examination of them. After­wards, on the 15th day of the same Month, the Defendants, by Petition pray'd for a Writ of N [...] Exeat Provinciam against the Complainant Pacheco, to com­pel him to give security for the Costs of this Suit, and for the Payment of the said 1500 l. Bond, in case the Complainants were cast; which accordingly was granted, and the Complainant Pacheco taken and arrested thereon, and to which he gave in security in Two Thousand Pounds accordingly. After­wards, to wit, the 18th Day of the same Month of July, the Complainant Pacheco, by Affidavit set forth, That the Defendant Hett, had for several Weeks past absconded; that he had great reason to believe, that Abraham Gouverneur was the chief instrument, and a party in carrying on the Frauds com­plained of in the Bill. That he was informed, and believed, that the Defendant Hett had made over the greatest part of his Estate to his Son-in-Law William Smith, and his Daughter Sarah Hett, on purpose to Defeat the Complainants of their Relief in this Suit: That he verily believed, on a fair Account, in this Suit, the Defendants would be found indebted to the Complainants, above three Thousand Pounds; & that he feared that if the said Abraham Gouverneur, Wm. Smith & Sarah Hett were made Parties to the Bill, they would not abide the Judgment of the Court, and had a like fear of Mrs. Fresneau. Wherefore by Petition, setting also forth, That it appeared by the Answers, that the said Abraham Gouverneur had received sundry large Sums of Money, part of what the said Hett had defrauded the Complainants of, and for which the said Gouverneur could render an Account. Which Petition being annexed to the said Affidavit the Complainants thereby prayed Ne Exeats against the said Abraham Gouverneur, Wm. Smith, Sarah Hett and Hester Fresneau, and that the Complainants might have leave to make the said Abraham Gouverneur, Wm. Smith & Sarah Hett Parties to the said Bill; and (because they were averse to that Charge, unless of an unavoidable necessity of doing it, or of losing their Money) they prayed time for the doing thereof, until the then Defendants have been ten days in Contempt for not complying with such Decree as shall be given in this Cause, if any such shall be given against the Defendants. Whereupon the Prayer of the Petition was granted, restricting the Security on the Ne Exeats to Two Thousand Pounds. And the said Abrah. Gouverneur, William Smith, Sarah Hett and Hester Fresneau were taken on the Ne Exeats, and gave in Security accordingly. On which same 18th of July, the Com­plainants, by another Petition, prayed (for avoiding of delay) that both sides might make their full proof before the hearing of the Cause, and be concluded from Examining after the hearing: And on hearing of the Council of both sides on the merits of the said Petition, this Court did not see sufficient cause for the granting thereof, therefore disallowed the Prayer of the same. Afterwards, on the 21th day of the same Month, the Defendants were served with the Rule to Examine their Witnesses, & the Complainants proceeded to Examine their Witnesses. Afterwards, to wit, the second day of August, 1727. the De­fendants, by Petition, without Affidvit, prayed Commissions to London, to Examine George Ch [...]ot, and the Complainants De Lara & De Costa, who were gone there▪ and [...] France to Examine Capt. D' Rossel and Mons. Dur­and, Mons. L [...]vod [...]s, heretofore Lieutenants of the Victory, & Mons. Baraule Clerk of the said Ship▪ On which Petition, Council of both sides being heard, those for the Complainants insisted,

1 st, That before the granting the said Petition, this Court ought to be well [Page 11] Convinced of the absolute neccessity thereof, in so far as the granting of it would be, in effect, hanging up the Cause forever, because most of the Persons prayed to be Examined, being of another Nation, and Sea-fairing Men; and therefore probably scattered into different places unknown to the Defendants; it probably would be many years, if the Defendants did their utmost Endeavours, before they could be found to be Examined▪ but if this was intended purely for Delay, they would take care that they should never be found to be Examined; and so from time to time, obtain new Commissions, for which Pretences enough might be found.

2 dly, That it was evident from common Reason, and the Practice of the Court of Chancery at home, then shown, that the facts on which any thing is prayed, ought to appear true, and sufficient for granting the thing desired; and therefore the Defendants must be irregular inmaking this Petition, without any Proof of the Necessity of Examining these Witnesses.

3 dly, That to make that Necessity evident, it ought to appear, by Affidavit or other-wise, what Points each Witness can depose to, and that the Petitioner knows of none here to prove the same Points, whereon the Court might and ought to consider, whether these Points were material, that Delays, by unnecessary Examinations, might be avided; and that, with this agrees the Practice of the Court of Chancery at Home, as appears in the Book of Orders thereof, page 207.

4 dly, That should the Court thereon be convinced that the Points were material, and that these Witnesses could depose to them, yet the other Party had the Liberty of admitting these Points, as proved, which the Complainants would certainly chuse, in this case, rather than be delayed; and played, That for the irregularity of this Petition, being without any Affidavit or Proof of the facts therof, it might be dismissed. Whereupon, and upon hearing what could be said by the Council of both sides, this Court did order, That on or before the 2 d day of September, the Defendants do file the Points to which they want to Examine beyond Sea; and by the 8th of the same Month, that they make it evident by Affidavit, or other-wise, that the Witnesses can materially depose to these Points. Afterwards, to wit, the Ninth day of August, 1727. the Complainant Pacheco, by Affidavit, set forth, That he had information that the Defendant Hett and one John Lafont, had privately packt a large Quantity of the Snuff in dispute, into Barrels, and concealed the same; that it was lately carried in the night to, and concealed in the Cellar of one Mrs. Bieu, the Wife of a Marriner; and by Petition there-with, set forth, That the Defendant Hett, having absconded, and the burthen of this Suit being like to fall on the Widow & Children of Fresneau, the Discovery hereof would so much [...] them; and that the Widow had prayed, That all means might be taken for the discovery & Recovery thereof, therefore pray'd the Court to do therein what might be agreable to Equity and Justice. Whereupon this Court did Order the Examiner of this Court to go to the Houses of the said Bieu and Lafont, and to Examine them to the Truth of the said Information; and if upon Examination it appeared [...] ▪ Then that Robert Lurting, one of the Masters of the Court, do take the Snuff into his Custody, [...] the further Order of this Court. Pursuant to which Order, the said [...] day report­ed to this Court, that he Examined Mrs. Bieu to the truth of the Information aforesaid, set forth in the said Petition, on Oath; to which she answered in the Negative, and declar'd that she knew nothing of the matters therein contain'd. That he in like manner Examined Mr. Lafont to the same, upon Oath, to [Page 12] which the said Lafont also answered in the Negative, and declared, he knew nothing of the matters there in contained: But being informed that Mr. Lafont had considered better of what he had said, and that he would declare the whole truth, if he were Re-Examined, he the said Examiner returned to Mr. Lafonts, and in the presence of Coll. Lurting, one of the Masters of this Court, Examined him to the same Points he had before done, to which he then replyed, That there was a private Cellar in the House of Bieu before-mentioned, that there were many Barrels of Snuff lodged in said Cellar; That he had packed three or four Barrels of said Snuff; that the same was there lodged by Mr. Rene Hett, or his order, and marked for Beef; and that said Cellar was hired by said Hett for that purpose. The said Examiner further reported, That after he had gone from Mr. Lafonts House, but some few Steps, Mr. Lafont followed him, and desired him to Observe, that he did not know that the said Snuff belonged to the Cargo of the Ship Victory. And the said Master Reported, That hav­ing been present at the said Last Examination of Lafont, he went with Elias Pipon, Son-in-Law of said Lafont, with the Consent of said Lafont, to the Cellar of the said Bieu, within which Cellar, along the Wall on the left side, there were Stanchions put up, and boards behind those Stanchions, which Mr. Pipon having beat down, behind them then appeared a small door nailed fast, which he opened, within which was a small Cellar, where lay Twenty Casks of Snuff, which he the said Master took into his possession, to wait the fur­ther order of this Court concerning the same: Which Twenty Casks weigh 3697 Pounds neat. Robert Lurting, M. C. Afterwards, to wit, the 24th Day of the same Month of August, the Complainants by Petition, set forth, That they had credible information of sundry more Quantities of the said Snuff, which was quickly to be Transported to the Defendant Hett, who still absconded in another Province, to avoid the Justice of this Court, and that they had given notice of Examining sundry Persons, who they had reason to believe, were privy to the said Concealments, and design of Transportation of said Snuff, and therefore pray'd Relief of this Court herein; Whereupon it was ordered, That if the Examiner upon the Examination of the Witnesses in this cause, does there-from discover any more Quantities of Snuff, so concealed by the Defendant, Hett, That the Examiner acquaint this Court thereof, And if his Excellency should be absent, that Robert Lurting, one of the Masters, do take it into his Custody, to wait the further Order of this Court.

Afterwards, pursuant to the Order of August 2d, the Defendants filed the Points they would Examine to beyond Sea, which in substance are,

1 st, That Capt. D' Rossel agreed to pay Fresneau and Hett all the Com­missions they charge.

2 dly, That he ordered them to pay the necessary Charges of the Snuff, and what Debts were owing by him, and to sell a part of the Snuff for that purpose; and that by his Power of Attorney, in the Answers mentioned, he intended fully to enable them to that purpose.

3 dly, That he ordered them to pay Mr. Ham [...] [...]0 l. when the Snuff should be acquitted, for Services he had done relating to the Snuff.

4 thly, A like Order as to 40 l. to Abraham Gouverneur.

5 thly, That he ordered them to pay for Mr. Baraules Maintenance at New-York.

6 thly, That he ordered them to act with the Advice of Abraham Gouver­neur in the whole Affair, and to pay him for his Trouble.

7 thly, That he ordered them not to part with the Snuff to the French Com­pany, without a precise Order from him.

[Page 13]8 thly, To Examine D' Rossell whether his Letter of the 13 th of February, 1721. was not upon Notice of the Seizure of forty Bags of Snuff for Store-Rent.

9 thly, To Examine Mr. Chabot in London concerning the Quantity of Snuff sent in the Duke of Portland.

10 thly, To Examine De Lara and De Costa, as to an Agreement about the Account and Bond set forth in the Answers.

And the Hearing of this Matter being put off to the 15th day of September, 1727. at which day the same coming to be heard, in presence of Council of both sides, the Council for the Executors of Fresneau disowned the said Petition for Commissions, and prayed that this Court would proceed without delay to the Determination of this Cause. And by the Council for the Defendant Hett, it was insisted on, That these Points were material, and proper to be examined to in Foreign Parts, in so far as most of these Points were by the Answers asserted to be True; and that these [...]sons, who from the nature of the thing, must have been Transacting them, or privy thereto, must be presumed to be the most proper Evidences thereto.

To which it was answered by the Complainants Council, That they con­ceived them not very material, and rather than to be put to the Delay of Com­missions, would admit every one of these Points to be true. And then in part, but more fully afterwards; on the hearing of this Cause, insisted That as to the first Point, This is the very first time that in all this Cause this thing was broached, and a matter of such Moment as the Defendants would make it, can­not (were it true) have slipt the Defendants Memory, during all the four Answers. But yet, there is nothing to that Purpose in any of the Answers; and as by the Answers, no such thing was asserted or put in issue, they could not, by the Practice of the Court, examine to it. Again, it cannot well be pre­sumed, that such a thing could be without some Writing, or Letter, or Paper, or some Persons here who have heard it; and yet, no such thing do they pre­tend there is: But further insisted, That were such agreement confessed, it would be no way binding, for by the Law of Nations, and of Merchants, no Master of a Vessel (as D' Rossel was) nor even the Owners (as the India Company were) could (either alone or both together) charge the goods freighted with them (as this Snuff of the King of Spain's was) with any thing beyond the Freight agreed on, further than the Expences that are absolutely necessary for the Preservation thereof: Again, were that Agreement good and binding, then if Hett had the same but one Night in his Custody, he must have had so much for it as now; and whatever Power D' Rossel had to make that Agreement with him, he had a like Power to make it with another Person; and so, after it had been a Night in Hetts Custody, might have put it into an­thers Custody, upon like terms, and the like with a third, fourth, fifth, &c. Persons; how absurd and contrary to common Reason, & the Laws of Nations and of Merchans this would be, needeth not further enlarging on. And therefore either such an Agreement never was; but if it had been, the same is void.

As to the 2 d Point, the Complainants never did or will dispute the payment of necessary Charges about the Snuff; but as to D' Rossel's Debts, no Order of his can, in Law or Reason, make another persons Good liable to the pay­ment of them: And as to his Power, it could not impower them to do what neither he nor the India Company themselves could do, to sell another Persons Goods, unless an absolute Necessity had happened, of selling a part for the Perservation of the rest; which Necessity has no way appeared in this case.

As to the 3 d, 4 th, 5 th & 6 th, the proving or not proving of these Orders, [Page 14] cannot be material or affect this Cause, for the Reasons before; nor can it be material to prove the 7 th Point, for its only proving that D' Rossel gave them an Order, which neither Law nor Reason could justify them in obeying: For as by the Law of Nations and of Merchants, the Owners of a Ship are answer­able for the Master, and all Persons to whom he shall intrust the goods freighted in their Ship, it must be in their Power either to change the Master or Keeper of those Goods, for such Persons as they shall chuse rather to trust them with.

As to the 8 th, They acknowledged, it might be material, and rather than be delayed, they would chuse to admit it to be true.

As to the 9 th, Mr. Chabot could not be the proper Evidence of what was Shipt in the Duke of Portland, but the Custom-House-Books, the Master and Owners here, must be proper Evidences of the Quantity Shipt, and Chabot, could only be of the Quantity Delivered him.

As to the 10 th, Every thing material concerning the Agreement and Bond, in the Answer set forth, was as well transacted with Mr. Pacheco, as De Lara and De Costa, so that they could Examine Mr. Pacheco here upon the Spot, to that matter, who was ready to Answer any Interrogatories to that purpose; and it was asserted, They might have Examined De Lara & De Costa before they went, they having given publick Notice of their going, in the Secretary's Office, according to the Custom of this place. So that upon the whole, they insisted, This pretence of want of Commissions to Examine beyond Seas, was only a pretext to delay Justice in this cause, and the rather, for that it has been publick fame here, these many Months past, that D' Rossel was Ship-wreckt and lost in a Voyage for Quebeck, and his Officers being Sea-faring Men, could not be supposed to be easily found, to be Examined. And further insisted, That tho' the Points had been material, and were set forth in the Answer as true, yet it could no way be inferred from thence, that these Persons set forth in the Petition, could prove these Points, Nor that there were no Persons or means here to prove them; both which they conceiv'd ought to appear to this Court, before such a delay, as almost a mounted to hanging up the Cause forever, were granted, and which, by the Reason and Practice set forth in the former hearing on this matter, ought to appear to this Court; And therefore prayed, the said Petition for Commissions might be Rejected.

And upon hearing what was alledged by the Council of both sides, this Court was of opinion, That sufficient Reason did not appear to grant the Commissions prayed for. And thereupon the Council for the Defendant Hett, produced an Affidavit made by him, to this purpose, That he is advised by his Council, that its material and Necessary for him to Examine Witnesses in foreign Parts, to prove the aforesaid ten Points, and that he believes that D' Rossel can prove all that's material for him to prove in the first eight Articles; and that about fifteen Months ago he had a Letter from him, and has not received any account of his Decease since that time, but does believe, he is still alive: That Baraule, Durand and Livodes were acquainted in some measure with the affairs relating to the Cargo of the Victory, and believes they can materially depose to the matters contained in some of the said Articles: That he believes Chabot can Evidence the 9 th Article, and De Lara and De Costa, the matters referred to in the 10 th Article; and that he is advised and believes, it's not safe to go to hearing without Examining them to the aforesaid Articles; and that he believes the Interest of the Defendants is concerned in such Examination to the value of Two Thousand Pounds. Which Affidavit was read, after some opposition to the reading thereof, by the Complainants Council, for that it had not been filed [Page 15] with the Register before hand, according to the practice of the Court, in order that they might have got a Copy thereof, and been prepared to speak to it.

And thereupon it was Ordered, That the same be spoke to that Day three Weeks.

Afterwards, to wit, the sixteenth Day of the same Month of September, the Complainant Pacheco, made Oath, by Affidavit filed, That there are sundry Facts, which he is advised are material, to Cross-Examine the Defendant Hett upon, concerning the Points of the said Commissions and Affidavit, and that he believed the Defendant Hetts Answers to Interrogatories for that purpose, would in a great measure avoid the Reasons adduced for granting the said Com­missions; and that he knew not how otherwise to prove those Facts, than by the Answers of the Defendant Hett, to such Interrogatories. And on the 18th of the same Month, upon Notice duly given, the Complainants Council moved, that a Day might be prefixed for Cross-Examining the Defendant Hett, as aforesaid; and offered the Interrogatories, that the Court might judge whether they were material. And Because the said Defendant had not purged his Contempt herein before-mentioned, moved further, That a day might be prefixed for him to appear and purge his Contempt, or that (according to the Practice of the Court of Chancery at home, to grant no favours to Persons while in Contempt) the Petition for Commissions be Rejected. And that to prevent surprize (as three weeks were given for a further hearing, on the De­fendants Petition for Commissions) if any further Affidavit or matter of Proof, the Defendants will use to support it, moved further, That they might file it with the Register a week before hearing. Whereupon, the Defendant Hetts Council, answered, That it was unprecedented to Examine the Defendant in any such Case; and that as their Affidavit was a voluntary Affidavit, which they might have chosen to make, or let it alone [...] they may chuse to be Cross-Examined, or let it alone, and are not Compellable thereto. And as to the Contempt, they had paid the Costs therof to the Complainants Council, which were accepted of by them, and so they had no right to move any such thing. And as to the filing such further Affidavit, as moved, they had no Objection thereto.

It was Replyed by the Complainants Council, That as to the Contempt, tho' they had no right to move it, yet as no Satisfaction was made to the Court, according to the Rules, the Court might, if they pleased, give order for the purging of the Contempt, and hoped the Court would, in so far as the Defen­dant Hett had for so long time absconded, to avoid the Justice of the Court; and that if he did not appear, the Proceedings thereof were like to be of little effect in this case, except only against the Fatherless Children and Widdow of Fresneau.

Whereupon, and upon hearing of what was alledged by the Council of both sides, this Court was of Opinion, That as the Defendants Affidavit was volun­tary, he is not compellable, but may chuse to be cross-examined concerning the Facts thereof, or not: But at the same time the Defendants declining such Cross-Ex­amination, takes off the Force of the Affidavit, in so far as the Exception to the same seemeth just. And in regard the Defendant absconds, to avoid the Justice of this Court, and the Practice at Home appears to be, as alledged by the Complainants, it is Ordered, That unless on Friday fortnight next, be Per­sonally appear in this Court, to purge his Contempt aforesaid, his Petition for Com­missions be Dismissed. And it is further Ordered, That the Defendant file with the Register such further Matter of Proof as shall be used to support the said Petition, a Week before the day of further Hearing thereof

[Page 16]Afterwards, to wit, on Fryday the sixth day of October, 1727. the Defen­dant Hett not appearing to purge his Contempt, according to the last Order, it was moved, That the said Petition of the Defendant, for Commissions, be Dismissed. And (according to Notice given) it was further moved, That a short Day might be appointed for Publication in this Cause, in regard the Complainant Pacheco only waited in this Province for the Issue of this Suit, as by Affidavit appeared. Whereupon it was alledged by the Council for the Defendant Hett, That neither the said Rene Hett, his Council, Sollicitor or Clerk in Court, had been served with the last Order, and therefore the Defendant Hett's not appearing Personally in Court, ought not to barr him from having Commissions to Examine, as prayed by his Petition. To which it was Replyed by the Complainants Council, That the said Order having been made in the presence, and upon full hearing of all Parties, there could be no need of Service thereof. And upon hearing what was alledged of both sides, it was Ordered, That the time for the Defendant Hett 's appearance, be enlarged for four Weeks; and that seeing no further Proof has been filed to support the said Petition, if the De­fendant Hett will claim any Benefit by his Affidavit for that purpose, he do then submit himself to be Examined to the Interrogatories exhibited by the Complainants, concerning the Facts in the said Affidavit; Or, That the Petition be then finally dismissed. And at the humble prayer of the Complainants, his Excellency will take the Trouble of the Examination aforesaid.

Afterwards, to wit, on Fryday the third day of November, 1727. neither the Defendant Hett appearing, according to the last Order, nor any of his Council, tho' it appeared by Affidavit filed, that the said Order was duly served on them, and no further matter being filed with the Register to Support the said Petition for Commissions; and it also appearing by Affidavit, That Notice had been given them, That Days for Publication and Hearing would now be again moved for, if the said Hett did not appear. Upon Motion of the Com­plainants Council (the Council for the Executors of Fresneau being present, and not opposing thereto) Its Ordered, That the Petition of the Defendant Rene Hett, for Commissions to examine Witnesses in foreign Parts, be finally Dismissed, and that Publication pass in this Cause in Eight days; and that this Cause be heard on this day five Weeks.

Afterwards, to wit, the fifth day of December, 1727. upon the Petition of the Complainants, setting forth the Absconding of the Defendant Hett, by which they could not serve the Subpoena to hear Judgment, upon him; and that by the course of the Court, the time was now too short for it, before the day already appointed for hearing; It was therefore Ordered, That the Ser­vice of the said Subpoena on his Clerk, be good, and that the Hearing be on the 21 st Instant.

Afterwards, to wit, the same 21 st day of December, this Cause, by the Order aforesaid, came to be heard; and the Council for the Complainants, and for the Defendants, the Executors of Andrew Fresneau appearing, but none for the Defendant Hett (tho' by Affidavit filed, it appeared that the Subpoena to hear Judgment, had been duly served, pursuant to the Order on the Petition, of the 5 th of this Instant) The Bill was opened, and the four Answers of the Defendants entirely read, as also the Depositions taken in this Cause, on the part of the Complainants (None having been taken on the part of the Defen­dants) and the Exhibits; by which it appeareth as follows,

[Page 17] Proof of Charge I. By the Proceedings of the Admiralty of New-York, it appears, and by the Defendants Answers, its Admitted, That the Victory was owned, commanded, Loaded, taken, and her Loading Libelled against, and the Tobaccoes of the King of Spain acquitted, and the Acquittal Appealed from, and the Tobaccoes of the King of Spain deposited in Hett and Fresneaus hands, by the Court of Admiralty, as herein before is set forth.

Proof of Charge II. Its admitted by the Answers, and it appears by the Letter it self proffered, That Hett and Fresneau wrote such Letter of the 22d of March, 1721-2. And by the Answers its admitted, and by the Proceedings of the Admiralty of England, it appears, the Acquittal of the King of Spain's Tobaccoes was con­firmed, as herein before is set forth. And by Notorial Acts made at Paris, which by the Answers are admitted to be Evidence by the Law of Merchants, the Ambassadors Letters to, and the Transactions & Agreements with, & Orders of the India Company of France, appear to be, and by the Answers are admitted to be, as herein before is set forth.

Proof of Charge III. By the Answers it is admitted, That Medina and Company, gave such Orders to the Bearers, and that the Bearers delivered the India Companys, and Medina and Companys, Orders to the Defendant Hett, as herein before is set forth. And by the Act of Richard Nichols, Notary, referred to and proffered in the Bill, the Acceptances and Promises appear, as therein fully, and herein before, in short, they are set forth; but the Defendant Hett, in his first An­swer, fol. 30 Denys, That to his belief, there is any Act of Richard Nichols, Notary, to such purpose as in the Bill; and in his second Answer, from fol. 30 to 36. the Receiving the Letters and Orders, and Promise of Comply­ance with them, in presence of the Notary, are confessed by him, as charged in the Bill; and he confesses the Act of Acceptation was drawn with his con­sent and directions, and that he had no Objections thereto, and that he believes the Act produced, is the Act of Richard Nicholls, and that Faith and Credit is to be given to such Acts.

Proof of Charge IV. By the first Answer, fol. 20, and second Answer, fol. 44. it appears, The Defendant Het told the Bearers, there was first 1700, and then 1400 Pounds due for Charges; and in fol. 50. of 2 d Answer, its admitted, the Account was not delivered till the Money was paid; which, considering the Improba­bility that any one would go about to pay Money without knowing, or at least demanding and doing Endeavours to know, for what it was to be paid; joyned with the deposition of Richard Nicholls, Notary Publick, who therein to the 22d Interrogatory, saith, That sometime before the Payment of the Money, Mr. Pacheco told him, That Mr. Hett had demanded a large Sum of Money, and threatned to Protest, and not deliver the Tobaccoes, if not paid; and that it was [Page 18] hard to raise so large a Sum in so short a time, and that it was hard he could not see the Account; and that he had asks Mr. Hett for it; And further saith, That he believed that from certain Passages at the Tender & Payment of the Money, none of the bearers had seen the Account; That when the Money was on the Table Mr. Pacheco said, Mr. Hett, you may now let me see the Account, for the Money is on the Table, or to that purpose; upon which Hett produced the Account. Which matters con­sidered together, do more than to a Probability, make good the Substance of the fourth head charged. And as to the Payment of the Money for the ballance of the Account, it appears by the Act of Richard Nicholls, and it's admitted in fol. 49 and 50. of the Defendants 2 d Answer.

Proof of Charge V. It is said by Richard Nicholls Deposition to the 23d Interrogatory, That immediately after the Money of the Account was paid, Abraham Gouverneur pulled a Paper out of his Pocket, and read it to the Bearers, and said, They must enter into a Bond of the same Conditions; and Hett then said, If they would Execute that Bond, they might begin to Weigh, if it was the next day; That Pacheco, said to the Deponent, he thought the Snuff should be delivered as soon as the Payment was made, and that now he was at a Loss what to do, or to that purpose. Which compared with the pretended Agreement set forth in the first Answer, from fol. 19 to 27. and pleaded in fol. 44. in which, by the Defendant Hett's own showing, no more Commissions of any kind were mention­ed, or pretended to be agreed about, than Five per Cent. & even that, Pacheco said, was too much; That by that pretended Agreement, the Complainants were only to pay the Charges in Cash, and Hett was to take Bond for the Commissions, but by the Defendant Hetts Account, it appears more than Five per Cent. of Commissions is therein charged and Received, and therefore taking a Bond still for more, must be an Imposition. Which compared with what hereafter shall be said on the 15 th Charge concerning Commissions, makes good the purpose of the 5 th Charge.

Proof of Charge VI. As to this, the Defendant Hett, says, in his 2d Answer, fol. 55. That he Delivered 1691 Bags of Snuff, weighing 316623 Pounds; but as he neither offers, nor has made any Proof of the Delivery of so much, the Deputy Weigh-Master (who its confessed weighed the same) his Certificate determines the weight delivered to be only 315400 Pounds as Charged; which compared with what Hett and Fresneau acknowledged to have been deposited in their hands, makes the Wantage appear to be, as its charged. And that the Com­plainants protested, for not delivery of what was so wanting, the Notorial Act of Richard Nichols to that purpose, makes appear. All which compared with the Sales and Concealments of the Snuff herein after-mentioned, make good the 6 th Charge.

Proof of Charge VII. As to which, the Defendant Hett saith, in his 2 d Answer, fol. 125. That the Account whereby the Complainants were charged, was drawn up from loose Papers and Receipts relating to this affair, & that no Books of Accounts, [Page 19] with respect to the same, were regularly kept by the said Hett or Fresneau; which answer to the matter charged and Demanded, being found Evasive and insufficient, the Defendant Hett in his third Answer, fol. 28, 29 says, That the Papers and Memorandums were kept by Mr. Fresneau, who at the stateing of the Account of Disbursements, on account of the Snuff and Tobacco, did produce the same, and read them over to Mr. Abraham Gouverneur, who Entered the same in the Account; but what became of them after-wards, the Defendant knoweth not, he having never seen them since. Which Answer to this matter being also found Evasive and Insufficient, the Defendant Hett, in his 4 th Answer, fol. 19 & 20. saith, That the Account that Abraham Gouverneur entered the Articles in, that were read to him by Fresneau, was that Account, from whence the Account delivered to the Complainants was drawn; and this Defendant hath applyed to Abraham Gouverneur for the said Original Account, and he says, he has applyed the same to a very com­mon use, long before this Suit commenced, and that it can't be produced; and the Defendants, and every of them deny, that to their knowledge or belief, they or any body for them, or either of them, have or hath any Book or Books regularly or irregularly kept, or Accounts, other than in this and their former Answers hath been set forth. Again, John Scott (who lived with & did business for Mr. Fresneau) in his Deposition to the 20th Interrogatory, saith, That Pa­pers and Memorandums were kept by Fresneau and Hett concerning the said Snuff, and that the Transactions concerning the said Snuff, such as shipping it off, paying the Charges concerning it, and the Sales of it, were entered in a Memorandum Book, which Entries were made by him the Deponent, and says, That all the Papers relating to this Affair, were kept in a bundle together at Mr. Fresneaus, until a little before Fresneau's Death, and then Mr. Hett took them, as he told this Deponent; but whether he had them all, or not, he can­not Depose. And Joseph Jamain, in his Deposition to the Twentieth Interro­gatory, says, That John Scot had the care of Mr. Fresneau's Books, and believes he kept a Book on purpose for the Snuff, & where that Book is, he connot tell.

Proof of Charge VIII. As to which, the Defendant Hett, in his 2 d Answer, fol. 126. says, That frequent Applications have been made to him to come to an Account with the Complainants, and to leave the Matters in Difference to indifferent Men, but he thought he was not accountable to the Complainants, and therefore refused to come to an Account with them; the putting the Bond in Suit, is also admit­ted in the Answers.

Proof of Charge IX. As to which, the Defendants in their 3 d Answer, fol. 7 and 8. deny it to their knowledge or belief; but in their 4 th Answer, fol. 7 and 8. deny it in the most express Terms; Whereupon the Complainants Council insisted, on the Matters and Arguments of the Third of June last, against amending the Defendants 2 d Answer, which they Inforced by the Deposition of Andrew Hamilton, who to the tenth Interrogatory, saith, That for his Services as Council for the French Goods and Snuff in the Admiralty, before D'Rossel's departure, he received Eighty Pounds in Money of D'Rossel, and a Note for other Eighty [Page 20] Pounds, payable upon account of said Rossel, by Hett & Fresneau, or one of them, upon the Issue of the Cause: That he always understood those Sums to be as well for the Defence of the French Goods, as for the Spanish, and that he does believe That Hett and Fresneau, or one of them, had Effects in their hands for the Payment, because they constantly promised the Deponent, that whatever should be the Issue of that Cause he should be satisfied; and that they actually paid to him the Deponent Forty Pounds, some time before the Determination of the Suit in the Admiralty, concerning said Snuff, as a Reward for coming to this Place from Philadelphia, to attend an hearing, when there happened none, which he understood to be out of the Effects of D'Rossel, then in the hands of Hett and Fresneau. Which being Compared with the Facts appearing on th [...] [...] Charge, viz. That the Accounts and Memorandum Book kept of the Snuff, [...] made away with, which might have made this Matter clear, were they produced; and that compared with a Case parallel in Vernons Reports in Chancery, page 452. where a Demand of 2300 was Dissallowed, upon the possibility only of making away with some Writings which might have given Light into the matter. And upon the whole insisted, that all the Charges on the Tobaccoes, at D' Rossel's departure at least be disallowed in the Defendants Account, unless the Defendants will, as yet, produce the said Memorandum Book, in regard of the improbability they should undertake to pay them, without Sufficient from D' Rossel to do it withal.

Proof of Charge X. As to which, it appears by the Admiralty Proceedings, That the French Goods and Spanish Tobaccoes were joyntly Libelled and Proceeded against, and the Depositions were taken joyntly concerning both; which, with Mr. Hamiltons Deposition aforesaid, That the Note of Eighty Pounds to him, was as well for his Services as Council for the French as Spanish Goods; it was insisted made out this Charge, and that therefore the Charges ought to be proportioned, so far as they related to both French and Spanish Goods.

Proof of Charge XI. This affects 1 st, 21 st & 28 th Articles of the Account, and it was insisted, That these were Debts, either not upon the Account of the King of Spain's Snuff, or upon the Account of it: If the first of these, then no Law or Reason could charge the King of Spain's Tobacco with them, especially to those who knew that it was not D'Rossel's Snuff; and if contracted, on account of the Snuff, then for the Matters under the 9 th Charge, it cannot well be supposed, but that he left in Hett and Fresneau's hands sufficient to pay them; and if not, yet only a proportion ought to be bore by the King of Spain's Tobaccoes ac­cording to the Matters in the 10 th Charge.

Proof of Charge XII. This affects the 1 st, 2 d, 3 d, 21 st, 22 d, 23 d, 24 th, 25 th, 26 th, 27 th, 28 th, 29 th, 33 d, 34 th, 39 th, 40 th, 41 st, 42 d and 43 d Articles of the Account, of which particularly. And as to the 1 st, 2 d, 3 d, 21 st and 27 th Articles, the Defendants in their 2 d Answer, 69. say, That the 1 st, 3 d and 21 st, were paid by the order of D' Rossel, and in fol. 71. say, That the first Article was paid to Mr. Hamilton for his coming to New-York from Philadelphia, and for [Page 21] his ears and pains in Managing, Pleading and Advising in and about the De­fence of the Snuff, for which sum these Defendants have a Receipt ready to be produced, which Receipt being produced, it appears thereby, that on the 27th of October, 1721. (which is the day after the Acquittal of the Snuff) he Received of them 180 Pounds, whereof (he therein says) Eighty Pounds was due to him by order of D'Rossel, and One hundred Pounds was for his Attendance and Services done at that time, on the Hearing and Tryal of the Cause of the Snuff. By which Receipt it appears, it was not 180 l. that D' Rossel owed Hamilton, as in the first Article of the Account, is charged but only Eighty Pounds. And that his Fees at the Adjudication were not 200 l. as in the 2d Article is charged, but One hundred Pounds and that both of these come to no more than 18 Pounds, tho' in the first and second Articles they charge 380 l. for these very Services. Again, the Defendant Hett says, in his 2 d Answer, fol. 6, 62. That Fresneau told him, he paid the 2d Article of 200 l. to Hamilton, and that he, the Defendant Hett, paid one half of it to Fresneau; and that Fresneau told him, it was for using his diligence in getting a Judge of the Admiralty in the room of Coll. Heathcote, and that he had not taken a Receipt for it. Again, the Defendant Hett says, in his 2 d Answer, fol. 72. That the 27th Article of God called Gratifications to sundry Gentlemen, was paid all to Mr. Colby Naval Officer, only; who refused to deliver the Snuff without it. And in his 3 d Answer, from fol. 9 to 12. says, That Mr. Colby demanded of Fresneau & him 200 l. to deliver the Snuff, and that some days before the Payment of the 60 l. be went with Mr. Fresneau to Mrs. Shepherds, where Mr. Hamilton then lodged, to know his Demands for his Services in procureing the Appointment of a Judge of the Admiralty, and they offered him a Hundred Pounds, which he treated with Contempt, and being out of Cash, they borrowed 300l. of Mrs Funnel upon In­terest, and Hett took One Hundred, and went with it to Colby, and prevailed with him to take 60 l. and Fresneau went to Mr. Hamilton, and paid the other Two Hundred Pounds, (as the Defendant Hett was informed by Fresneau, and believes) and when he met Fresneau, he told him, that he had better Luck than himself, for he had saved Forty of his Hundred, but he had been forced to deliver to Mr. Hamilton the whole of his Two Hundred. Upon which was observed, the Improbability of the Truth of these Matters, that Mr Colby should insist on so much Money when the 11 th Article was ordered him by the Court, and no more, for th [...]s [...] Services, & for which only, the Court would have compell'd him to deliver the said Snuff; and that, were it so, it was a very improper Title in the Account, to call it Gratifications to sundry Gentlemen, when all was paid to one; and that it was rather to be presumed, as most probable, that the Defendant Hett not knowing how to account for this Article, thought it most safe to lay it on the back of a Person who was dead and gone, as Mr. Colby was, and so could not deny his Affections. That by saying, the 200 l. was paid to Hamilton at the same time the 60 l. was paid to Colby, sh [...]ws that it was after the Adjudication, and before the Delivery of the Snuff to the Defendants; which compared with the Name they give the 200 l. in their Account, viz. Mr. Hamilton's Fees till the Adjudication, and Compared with the said Receipt [...]f Mr. Hamilton, and the date thereof, which shows it to be at the same time, do fully demonstrate the improbability of the Defend▪ [...]s Pretences concerning this: which is further enforced by Mr. Hamilton's Deposition to the 11th Interro­gatory, who says, That he nor any other Person for him, ever received any Sum of Money (besides the Forty Pound and the 180l. for which he gave his Receipt) of the said Hett and Fresneau, upon account of the said D' Rossel, or any Saviors [Page 22] done either for the French or Spanish Goods, or upon any other Account whatsoever, or of any other Person for them. And as to the Third Article, Mr. Hamilton's Deposition to the 10th Interrogatory, set forth under the 9 th Charge, shows for what it was paid him. And as to the 21st Article, the Defendant Hett says, in his 2 d Answer, fol. 69. That he has a Receipt for that Sum, & that it was for Services relating to the Snuff; which being Excepted to because no Order appeared in writing for payment thereof, as for Mr. Hamilton's 80 l. ow [...]ng him by D'Rossel, & because it ap­peared not for what Services that Sum was owing, the Defendant Hett in his 4 th Answer, fol. 9, 10. says, He hath applyed to Mr. Gouverneur, for an Ac­count of the Services, but he can't render a particular account of them.

As to the 22 d, 23 d, 24 th, & 25 th, Articles, to Mr. Wileman, Register of the Admiralty, its said in the 2 d Answer, fol. 62. That these Payments were made by the Defendant Hett and Andrew Fresneau, deceased, and for which Receipts have been taken, ready to be produced. Which Receipts being de­manded to be produced, and none given, and Exceptions being taken hereto; the Defendant Hett, in his 3 d Answer, fol. 33, 34. saith, That an account of Forty two Pounds two Shillings and six Pence paid to Mr. Wileman for Registers Fees, with a Letter wherein the said account was Enclosed, Directed to Andrew Fresneau, whereby the said Fresneau was desired to pay Nathan Simson Forty Six Pounds on his Account, are in the Defendant Hetts Custody, and ready to be produced when Demanded. And also, the Defendant has Lately procured an Account of Particulars amounting to Twenty five Pounds six Shillings more; also, another of Ten Pounds one Shilling and six Pence more, which are also ready to be produced, which is all that he can obtain, or the said Wileman give, as he has been informed by said Wileman. Which Papers being demanded to be produced, and Copies thereof given, it appears that the Accounts of 25 l. 6 s. & 10 l. 1 s. 6 d. were for the Registers Fees in the year 1719. as well on the account of the French as Spanish Goods, and for which D'Rossel being then on the Spot, must be presumed to have paid, es­pecially seeing the Defendant offers no Receipt for these Sums, and the rather still, for that the Defendant Hett, in his first Answer, fol. 32, saith, That to his knowledge D'Rossel sold several Hundred Pounds worth of Goods to defray the Charges of the part of his Cargo that was Cleared of the Caption before his Departure. And it was farther hereon Observed how little Credit ought to be given to the Defendant Hetts Account or Pretences, even upon Oath, seeing he has adventured by these four Articles to Charge 141 l. 15 s. 2½ d. as paid to Mr. Wileman (an Inhabitant in the Town, & who might Easily Justify this matter if true) and upon Oath to say, by Receipts ready to be produced, and when put to it, can show no Receipt, & but only a Probability of Payment of 42 l. 2 s. 6. d. on this Affair. The other two Accounts being, for the Reasons above, most probably paid by D'Rossel, at least nothing is pretended that can show they were paid by the Defendants.

As to the 26 Article of 65 l. the Defendant Hett says, in his 2 d Answer, fol. 63. That it was sundry Tavern Expences paid at sundry times in Treats of the Court Lawyers, and others concerned in this Affair, and that the whole was Computed by himself and Fresneau to amount to 65 l. Which being ex­cepted to, for that the 7th Article of 48 l. 14 s. 1½ d. was not disputed by the Complainants for Charges, and that it could hardly be that they were put to both these Sums in Expences, therefore the Defendant Hett, in his 3 d An­swer, fol. 2. says, That the 65 l. Charges accrued after the 7th Article had been allowed of by the Court of Admiralty, which by the procedings thereof [Page 23] appear to be on the acquittal of the Tobaccoes. And theron it was Obesrved, That in the nature of things, it was hardly Possible, and far from Probable, that after sentence, when either Court or Lawyers had little to do in the Affair, the Defendants could be at so much Charge in treating of them: Which com­pared with the Deposition of Andrew Hamilton, to the Twelvth Interrogatory, who saith, That he does not remember that he ever put said Hett & Fresneau, or either of them, to any Expense in a Tavern, unless that one night he was at a supper, which he thinks might be some very small Expense to them. And that all this taken together, shows the Improbability of so much being Depended, as is said in this Article.

As to the 28 th Article of Ten Pounds paid to the Pilot of the Victory, the Defendant Hett acknowledges in fol. 76. of his 2 d Answer, That he only paid 4 l. 10 s. tho' he took a Receipt for Ten Pounds.

As to the 33 d, 34 th, 39 th, & 43 d, Articles, the Defendant Hett says, They were paid, or he was liable to pay them; the 33 d & 34 th, he conceived Abraham Gouverneur deserved for these Services, and had applyed to him for an Account, but he could give none. The 39 th was paid one half to Mr. Wileman, and the other half due to Mr. Clows, he had asked an Account of Wileman, but could get none, but proffers Mr. Clows's: And the 43d he be­lieved came to more, but had no account of it.

As to the 40 th, 41 st & 42 d Articles, on the face of the Account, it appears that 230 days Negro-hire, does not come to 40 l. as charged in the 40 th Article, As to which the Defendant Hett says, in his 2 d Answer, fol. 83 & 86. That Cartage and Posts to support the Ware-house must be included, & that the Negro-hire was to turn the Snuff after a Storm, that much damaged it, and denys it was done with the fraudalent view of chusing the best Snuff to Ship off for Holland and England. And in his 3d Answer, fol. 14. he says, He paid about one half of the Negro-hire, and Fresneau the other half, but no account was kept of it. And as to the 41 st, the Defendant Hett says, in his 2d Answer, fol. 98. That he paid so much for mending the Bags to one Bon Repos, and that there was a Necessary for that Charge, because of the Storm. And in his 3d Answer, fol. 16. he say, He can get no account of Bon Repos, but he paid him so much.

As to the 42 d Article, the Defendant Hett says, in his 2d Answer, from fol. 92, to 94. That Ozenbrigs were then 15 d. per yard, That he bought them a Penny-worth, and being a Shop-keeper might take a reasonable Advantage on them; confesses he bought 771 Ells thereof of Mr. Delancy for 12 d. per Ell, and 967 Ells of Nunez at 12½ d, and the remainder of Bryer at 16 d, and some Tents were used to this purpose. And in his 3 d Answer, fol. 14 & 15. con­fesses Bryer's Ozenbrigs to be 367 Ells, and had 40 Tents for Fifteen Pounds, and thirty Tents for Thirteen Pound Ten Shillings; and for six Tents, Twelve Pounds, and that he believes all said Ozenbrigs and Tents were applyed to making, mending, patching and repairing the Bags, and that one sound Tent would make about five or six Bags, but some were in part rotten. And in his 4 th Answer, fol. 11 to 13. confesses of whom the Tents were bought, and when they and the Ozenbrigs were paid for, and that what was said in his 3 d Answer, to be Six Tents, Twelve Pounds, should have been for Twelve Tents, Six Pounds. As to which, John Scott in his Deposition to the 18th Interroga­tory saith, That no Ozenbrigs that he knew of were used about the Bags, but a cheaper sort of Linnen, called Hartfords, and some old Tents, and that said Linnen and Tents were used for patching and covering said Bags; and he says, that many Bags were needlessly covered, and some were covered which [Page 24] wanted only patching; and he says, That such as at first wanted Patching or Covering, were patched & covered by the joynt order of Mr. Hett & Fresneau; & afterwards, Mr. Fresneau observing that Mr. Hett would have more Bags cover­ed than wanted it, did oppose the doing of the same, to which Mr. Hett replyed, I will cover my own half, and put the Profit in my own Pocket; and that Fresneau said, he could not Answer the doing so. And Joseph Jamain in his Deposition to the same Interrogatory saith, That he believes the Snuff might have been preserved without covering the Bags a new with new Stuff, but cannot tell who ordered said Bags to be new covered, but has heard that Mr. Fresneau did oppose the new covering the same, and that he told Mr. Hett, That it was not fair to put Money in his Pocket thereby. And it further appears by the Certificate herein-before-mentioned, of the Deputy Weigh Master, That there were 804 of the Bags delivered to the Complainants, which were covered, and no more; and upon the whole of these three Articles, it was observed, there was not only a very great Over-charge, but hardly fair dealing in Hett concerning them; and that by the Law of Nations, of Merchants and of Common Reason, no more than the necessary Charge ought in this case to be allowed.

Proof of Charge XIII. As to which, the Defendant Hett says, in his 2 d Answer, fol. 90. That D' Rossel gave directions to make such Presents as [...]h [...]y should think fit. Whereupon it was observed, That D'Rossel had no power himself to make Presents of ano­ther Persons Goods, and so if they could show directions from him to this purpose, they could be of no use; and had they any such directions, it would have been reasonably supposed they would have had them in writing, which they don't pretend to have; and that 17½ per Cent. Commissions are charged for makeing these Imbezlements, is apparent by inspection of the Account.

Proof of Charge XIV. Its admitted by the Answers, there can be no dispute but that the Com­missions ought to be so reduced.

Proof of Charge XV. As to this matter, the Defendant Hett, in his first Answer, from fol. 20 to 27. sets forth, That Commissions at Five per Cent. were talkt of with the Complainants before the acceptance of the Agreement at Paris, That the Com­plainant Pacheco said, It was too much, but said, if he could prove that any Merchant in New-York, had so much he should have it; that he after-wards showed them a Cetificate of two persons that they had Five per Cent. for Delivery, with which its there said, the Complainants were satisfied. On which it was observed, That no Proof being of this matter, it is as if no such thing had been; & it was theron further observed, That no other Commissions whatsoever are mentioned in the first Answer, than that Five per Cent. and would the Defendants have been satisfied with that, it would not have been a Dispute here. Again, the Defendants in their 2 d Answer, fol. 79. say, They do believe, that by the Custom of Merchants Two and a half per Cent. is usually allowed for storeage, tho' the goods received by the Factor were immediatly sold and Delivered, and never actually put in any Store-House, but [Page 25] here the Store-Rent came to more than the Storeage. Again, the Defendant Hett, in fol. 90. of 2 d Answer saith, That by the Custom of Merchants, he believes, its usual to charge Five per Cent. for receiving, and Five per Cent. for Delivery, and Two and half per Cent. for storeage, tho' perhaps the goods are not detained one day in the Custody of the Factor. On which it was observed, That no Proof was of this, and that if there had been, yet it must be when Goods are sent to a Factor to sell, and if those Goods he should hap­pen to sell the same day he receives them, and make Returns of the Price the same day, then Five per Cent. for the Sales, and Five per Cent. for the Returns, and Two and a half per Cent. for the Storeage, its agreed is usual; but this is no such Case; for these Tobacco's were never put into their hands for any such Purpose as to sell or make Returns of them, and for no other purpose, but the safe-keeping of them till called for, and Commissions for the safe-keeping, and no other, could or ought to be demanded in this case. That if barely for receiving and Delivery Ten per Cent. Commissions were due, then every Per­son thro' whose hands goods once came, ought to have the same, the Conse­quence and absurdity whereof, could not be hard to see.

Again, the Defendant Hett, in the 2 d Answer, fol. 102 & 103. saith, That by the Custom of Merchants, he believes he can fully Justifie his de­mand of Seven and a half per Cent. for Commissions and Storeage, and says, That the Complainants did freely, and without Compulsion, agree to pay the same before their Acceptation aforesaid, in manner as in first Answer is set forth.

Whereupon it was observed, That the Defendant here brings the Agree­ment of the Complainants to support that Custom of Merchants; but, as was observed before, there is not a word mentioned in the first Answer of more Commissions than of five per Cent. And as to the Custom of Merchants, it was insisted, That none such was proven, and for the Reasons before, no such Custom could be.

Again, the Defendant Hett, in fol. 105. of the 2 d Answer, saith, That he verily believes, and doubts not but that he shall be able to prove, that it is agreeable to the Usage of Merchants in New-York, in such cases where goods are received, tho' they are not sold, but delivered over by the Order of the Employer, to a third Person, to charge so much as he has charged.

Upon which it was observed, That no sucn Usage appeared; but if it did, it could only be when Goods were put into a Merchants hands to sell, and in that case, tho' not sold, yet as he was willing to sell them, and had been at pains to show them (perhaps to many People) for Sale, it was but reasonable in that case to charge the Commissions for storeage and Sale, (which is Seven and half per Cent.) upon delivery over of the goods to the owner or another Fac­tor, if no default was in him that they were not sold before. And that the Custom might be so, in that case, they admitted; but that this Case was not like it, the goods here being never put into their hands for Sale, nor could they be at any trouble in showing them to buyers, or bargaining about them, which is a great part of the cause for which Commissions are drawn; and therefore if this were proven, it would not justify Seven and a half per Cent. in this case, and far Less Twelve and a half per Cent. as is charged; and insisted, that the knavery appearing in this case, and the not keeping or making away with the Accounts, ought in Reason to Deprive them of Commissions (were they other­wise due) for Commissions would seem only due to those who have honestly performed, or endeavoured to perform, the service for which the Com­missions [Page 26] are demanded. And further, the Complainants Council insisted on the Arguments herein before set forth, on the first Point, to which the De­fendant Hett prayed Commissions to Examine beyond sea; and on the whole, insisted, That only Commissions of Two and a half per Cent. for storeage, and what the storeage might exceed the Commissions, and what was reasonable for Pains, care and labour about the Snuff, ought to be allowed of, in this Case.

Proof of Charge XVI. Upon this the Defendants in their 2 d Answer, from fol. 9 to 16. set forth, a Letter of Attorney to Fresneau and Hett, dated the 29 th of August, 1719. from Capt. D' Rossel, whereby he makes them his Attorneys to receive all Moneys, Goods, &c. due to him in this Province, and to prosecute the Suit in the Admiralty, about the Snuff and Tobacco, as also sundry Sums of Money and Ambergreefe, and to use all lawful, means for the Recovery thereof, and upon Receipt thereof, to dispose of the same for his use, and to pay and discharge all Costs and Charges relating to and concerning the same; and that by virtue of that Power, they disposed of sundry Parcels for defraying the necessary Charges.

As to which, it was insisted, from the Reasons of the Argument of the 15 th of September last, upon the first Point which the Defendant Hett would have examined to beyond Seas, That neither the India Company nor D' Rossel could themselves sell any of the said Tobacco's, unless in case of an absolute Neces­sity of selling a part for the Preservation of the rest; and therefore their Letter of Attorney could give no more Power than they had.

Again, the Answers set forth, That Hett & Fresneau, by the Custom of Mer­ [...]ts, had Power to sell to pay necessary Charges.

Upon which it was observed, That in cases of absolute Necessity, for Pre­servation of the rest, a part might be sold: or if the Owner will not, upon pro­per application, pay Freight and necessary Charges: in these cases the Custom alledged, was admitted, and denyed in any other. But here was neither an absolute Necessity to sell a part for the Preservation of the rest, nor any refusal of Payment of Necessary charges, but on the contrary, it appears in 2 d Answer, fol. 17 & 18. by a Letter from the India Company, there set forth, dated the 14 th of January, 1722. wherein they Promised to Hett & Fresneau, that they should be exactly reimbursed all their Charges concerning the said Tobacco's.

And it further appears by the Account and Answers, and the Letters of Hett and Fresneau, that they on the 22d of March, 1721-2. drew Bills for Two Hundred Pounds Sterling, on the Company, which its confessed were paid; and from thence it was inferred, that as the India Company Promised to reim­burse them, and so far as they drew, paid; There nothing can appear but that the India Company would in like manner have paid all the other charges.

As to which, its set forth in the 2 d Answer, fol. 21. That tho' the Bill for Two Hundred Pounds was paid, yet it was not till about ten Months after the Company had Promised to pay it, which discouraged them from drawing any more Bills, and from that time forward, Sold Snuff here to raise Money, instead of drawing Bills.

As to which, it was observed, That the greatest part of their Sales by their own showing in the Account, were made even before the 22 d of March, 1721-2. when the Bill was sent, and by the Answers & Schedules, it appears, that a great part of the rest was sold and shipped oft for Holland before ever they could have [Page 27] an answer from the India Company; so that the not payment of their Bill in time (which still no way appears to be so) could not be any cause of these Sales; but the said Hett & Fresneau must have been Conscious to themselves of their breach of Trust, in making these Sales, seeing neither when they drew that Bill nor afterwards, did they acquaint the Company of these Sales, as appears by their Letters; and is confessed in the 3 d Answer, fol. 30. & 4 th Answer, fol. 21, 22, which Consciousness still further appears by the 2 d Answer, fol. 24. where­in they confess, they wrote two Letters to the India Company for leave to sell, being willing to secure themselves in the Sale, by the express consent of the Com­pany, as well as by D' Rossel's Power; which leave was not granted, but the India Company, by their Letter, set forth, in fol. 22. of the 2 d Answer, dated 17 th of August, 1724. say, They had been, informed that 150 Bags of the said Tobacco had been sent into Holland, they could not believe they had sold so much, but desired them to sell no more without an Express Order. And upon the whole, concluded, that the 16th Charge was fully made out, and therefore that the Defendants ought not to be allowed the Article of Com­missions of Sales.

Proof of Charge XVII. As to this, the Defendant Hett affixes to his 2 d Answer, a Schedule, which in fol. 119. he says, He believes to be a true & full Account of the Snuff receiv'd by the said Fresneau & Hett, and applied to their use, allowances being made for the Damage thereof. Which Schedule contains 137 Bags, weighing Neat 20628 l. whereof above eighty of the Bags appear to weigh under one Hundred and a half, many only one Hundred, and none of them above two Hundred. To which also is affixed an Account of Sales of ten Bags of them by Vanwys and Clarkson at Amsterdam, weighing there gross 1934. Also, another Account of Sales of 50 Bags by Abraham Terbosh at Amsterdam, weighing 9248 gross; in which two Accounts of Sales many of the Bags weigh above 200, and sundries 240 Dutch Weight, and one of them 266, and none of them so small as 150. Also, ano­ther Schedule, which is said to be the weight of 20 Bags sent per Capt. Thody, but that the account of Sales is lost or mislaid, which makes the 20 Bags appear to weigh only 3027 Neat, which twenty Bags by the Entry out thereof, in the Custom-House of this place, and by the Oath of Robert Elliston proving the same, appear to weigh 4126 Neat. Also, an Account of 31 Bags sold to Richards and Clarkson, here at the Mast, weighing Neat 5511. Upon which it was insisted and observed, That when the account should come to be settled before a Master of this Court, they were able to prove the Dutch Weight to be Eight per Cent. heavier than the English, and if so, then it would plainly ap­pear, that these four Articles being only 111 Bags weighed more than the whole 1 [...]7 Bags, wherof they are said to be a part, by the weight of four or five Bags, and that therefore short Credit of about 30 Bags is given in this one Article of the 1 [...]7 Bags, and that upon the pretence of taking it to themselves, and mak­ing allowances for damage.

To the Second Answer, the Defendant Hett also annexed another Schedule, called the weight of 13 Bags, sent per the Unity to Holland, amounting to 1803 Neat, whereof the Account of Sales is lost or mislaid. As to which, the De­fendant Hett says, he sent no more in the Unity, and does not know or believe that any more was sent by Andrew Fresneau or himself, tho' by the Entry of the Custom-House here, on the 13 th of February, 1721. and by the Depositions [Page 28] of John Scott and Robert Elliston, it appears that 36 Bags of Snuff were Enter'd Our by Fresneau in the Unity. The Defendant Hett also affixes an Account of 13 Bags sold to a Stranger, weighing 2235 Neat, and saith, in fol. 120. of his 2 d Answer, That these were the several Parts of the number of 137 Bags mentioned in the Account. And in fol. 142. saith, He hath given a full Account of the Tobacco & Snuff that hath been sold by him, or that he knows or believes was sold by Andrew Fresneau, deceased, or any Body for them, or either of them, or any other way disposed of by either of them. And it appearing by the several Schedules afore­said, that the said Snuff was sold for higher Prices than that given Credit for in the Account, It was insisted on to be [...]raud to conceal that, on pretence of taking the Snuff to themselves at a lowe [...] [...]rice; and that they ought to account for the Neat Produce thereof, accordi [...] to the Sales; and that, had they Pow­er to sell; by the Laws of England, a [...] of Merchants, they would have been Bound to this; and much more in this case, where their Sales were breaches of Trust, which the Laws of all Civilized Nations do discourage; and some have extended that discouragement even to the taking away the Life, in case of breach of Trust, in selling things deposited.

The Second Answer being found Insufficient and Evasive to the Matter in the 17 th Charge, the Defendant Hett, to his third Answer affixes Schedules of the Sales of the 5 th, 6 th, 7 th, 8 th, 9 th, 10 th and 11 th Articles of the Credit side of the Account, by which sundry short Credits appear to have been given in those Articles; And from fol. 17 to 23. of the 3 d Answer, denyeth, that he doth know or believe there was any more Snuff or Tobacco sold or bartered by him [...] Andrew Fresneau, deceased, than is contained in said Schedules; and saith, [...] allowed in the One hundred and thirty Seven Bags were [...] at Ten, some at Twelve, and some at Twenty Pounds per Bag, but [...] Quantity does not know, of the allowances made for damages, either [...] [...]ole or in part more fully, the allowances having been made at the Beam [...] no particular account kept of it.

And the third Answer, being also found Evasive and Insufficient in this Point, the Defendant Hett, in his 4 th Answer, fol. 16, 17 & 18. says He does not know or believe that there was any more Snuff sold or bartered by him and Fresneau, or any body for them, or either of them, than in the sche­dules to their Answers is contained; and confesses, the Snuff taken to them­selves was weighed at the beams of Hett & Fresneau, and that they themselves made these allowances to themselves. Upon which it was observed, That it does at last hereby appear, that they took to themselves, On this pretence of allowances, what of the Snuff they pleased, and called it what weight they pleased: and that how faithful they were herein, to their Trust, & how Agree­able this was to the character of Honest men, could not be hard to determine. And that from the schedules to the 2 d Answer, it plainly appears, it was not Ten, Twelve or Twenty Pounds per Bag that satisfied them, in so far as not one of the 137 Bags weighed above Two Hundred, and yet of the particulars of the same 137 Bags, one bag weigh's 266 l. Dutch weight, which makes to a Demonstration the allowance on that bag above Sixty Pounds, and that the rest will appear to be near the same Proportion, in so far as a little more than 100 Bags of the particulars of the 137 Bags will appear to weigh as much as what the Defendant calls the weight of the whole 137 Bags: That these Al­lowances were not made at the Beam, but that the Contrivance is of a later date, there's some probability appears from the Deposition of Joseph Jamain to the 21 st Interrogatory, who says, that the Defendant Hett showed him [Page 29] two Weigh Notes of Snuff, and desired him to alter the one to the weight of the other, but he took no pains to come at Mr. Hetts m [...]ning, thinking if not just; remembers something of thirty or two and thirty Bags, and believed it would be dangerous to alter a Weigh Note, Hett obliging him at the same time to secrecy, which made him willing to get rid of Mr Hett; and says, he never came near Mr. Hett afterwards: But a much stronger Probability appears; that this Contrivance was not at the Beam, by the Deposition of John Scot to the 19th Interrogatory, who says That of the Snuff shipped off by Fres­neau & Hett, they sometimes picked a bag and sometimes took it as it came, but threw aside the damnified, and that they did not chuse for the best Snuff, but for such as was not damnified, and of a yellow colour, being advised that such Snuff would answer best; and says, they generally chose the largest Bags, there being some Advantage in the freight, or Duty in Holland. And to the 20th Interrogatory, he saith, That he Entered the transactions concerning the Snuff in a Memorandum Book, such as shipping it off, paying charges, and Sales: From whence its to be presumed, no such Allowances were then made, there being none of the Damaged bags taken, or if there had been any Damaged taken, Entries would have been made of it, and the Allowances thereon, in the Memorandum Book, which Book Hett, as before is set forth, has got into his hands, and made away with. And that notwithstanding the Defendant Hetts denyal upon Oath, as aforesaid, of the Sale of any more Snuff than what's in the said schedules, and saying, he had given a full account, yet it ap­pears by the Deposition of John Waldron, that the nine bags sold to him, credited in the account, he bought at Eight pence half penny per Pound; By the same Deposition, it also appears, that John Waldran bought afterwards of Fresneau & Hett fourteen bags at Nine pence per Pound, and that both parcels he had out of Coll. Lurtings Store-house, & understood by Hett & Fresneau, that it was of the Cargo of the Ship Victory; and for which nine bags he gives Credit only at Eight Pence; and for the fourteen bags, no Credit is given, nor discovery thereof made, by the Answers or schedules. And notwithstanding the Defendant Hett saith in his 2 d Answer, fol. 26 & 27. That he and Fresneau since the 17 th of August, 1724. have not nor either of them hath sold any Tobacco or Snuff, yet it appears by the Deposition of the said John Waldron that since the Death or Fresneau (who by the Depositions of Hammond and Goelet herein after-mentioned, appears to be living Long after the 17 th of Au­gust, 1724) he bought of the Defendant Hett six bags of Snuff weighing 1151 at Nine Pence half penny per Pound, which he understood to be of the Victorys Cargo, as aforesaid. And by the Deposition of John Lafont it appears that in the Month of November, 1725. he bought of the Defendant Hett one bag weighing One hundred three Quaters and six Pounds at Eleven pence per Pound, and that Hett told him, it remained in his hands on the Account of D' Rossel. And by the Deposition of Jacobus Goelet it appears, that in the year 1725. about May or June, he bought a bag of Snuff of the Defendant Hett, and that Mr. Fresneau was not present when he bought the same, for which he gave Fourteen Pounds Eleven Shillings, and Hett b [...]d him tell no body that he so bought it, for that it was sold to pay charges of Storeage. By which it appears, that these last Eight bags have been sold by Hett himself, since the said 17 th of August, 1724. and no Discovery made by him or Credit for any part thereof, but again and again, he has denyed these Sales, upon Oath, as aforesaid.

[Page 30] Proof of Charge XVIII. The Defendants do say (in fol. 35 & 36. of the first Answer) that each of them delivered to the Complainants all the Tobacco and Snuff in each of their hands, or in the hands of any other Person for them, or any of them, at the time of the Acceptance of the Companys Orders aforesaid, and do absolutely deny, that any of them hath directly or indirectly detained, imbezled or transported to any place, or otherwise disposed of any part or parcel thereof, except a few Can­nisters thereof to some Persons to whom he the said Rene Hett was oblidged for service, relating to the said Snuff, since the Receipt of the Letter of August, 17 th 1724. whereby they were ordered to sell no more Snuff. And in fol. 21, 23. of third Answer, the Defendant Hett denyeth, that he, or any body for him, sent any Snuff belonging to the Cargo of the Ship Victory, in Barrels or other things for containing the same, than what's mentioned in the schedules, to be sent by the Unity, Content and Duke of Portland, for England & Holland, nor in any other Vessels, or to any other Place or Places. And in fol. 26. of the third Answer, the Defendant Hett denys, that he Clandeslinely kept back great Quantities of the Snuff and Tobacco, by putting the same in private Places, or hath any way concealed the same from the Complainants, by not render­ing an account thereof, or otherwise.

Yet notwithstanding these several Denyals upon Oath, what appears by the Reports of the Examiner and Master, of the 9th of August last, herein before set forth, and by the Deposition of Jean Lafont, who says, That the Twenty Barrels found at Bieus, were markt by Mr. Hett, Pork and Beef, and that he was desired by Rene Hett to keep the same secret, and told him, it remained in his hands upon the account of Mr. D'Rossel; That the Barrels were filled before he came to Mr. Hetts house, and that Hett desired him to close up the Barrels af­ter they were filled: That he and Mr. Hetts Negroes shut up the Snuff in the Cellar, where it was found by Coll. Lurting; and That he was desired by Mr. Hett to keep the said Barrels secret. And by the Deposition of Elias Pipon, he saith, To the best of his knowledge Rene Hett did tell him that the Snuff found at Bieus, and taken by Coll. Lurting, was part of a parcel he had bought of D'Rossel, one Durong and one Ashton: He says, he has seen the Barrels, but did not take much notice of the Mark, but believes that one of them was marked with a (B) says, That the Snuff was lodged in a small Cellar at Bieus, and that there was a door to that Cellar, but that the same was Concealed by Boards, and another Door laid a-cross the same, and that stancheons were placed so as to secure the said Boards and Door from falling; and that he believes the same was intended to be kept secret. And all which being compared with what appears upon the 9 th Charge herein before-mentioned, and other Circumstances of this Affair, make it evident, That these twenty Barrels of Snuff were part of the Snuff in que­stion, clandestinely concealed by the said Defendant Hett. And as to ship­ping off more Snuff than in the schedules mentioned, and to other places, it appears by a Letter, duely proved to be in the hand writing of Sarah Hett, Daughter of the Defendant Hett, and signed by the said Defendant Hett's own hand writing, bearing date the 27th of August, 1725. and directed to Mr. Peter Funnel of Boston, That the Defendant Hett thereby sent him the Invoice and Bill of Lading for four Barrels of Snuff, whereof the Bill of Lading men­tions Flour; that he says, he had reasons for that, and desired him to keep it secret, and Ship it off for London or Amsterdam, and to tell him whether there [Page 31] was any difficulty about that Ware, because he designed to send him more of it; and that he might send it to London, if there was no danger in making it pass for Snuff of the English Plantations; and that the four Barrels were before the Mast, in the Sloop. And it also appears by another Letter, proved to be writ­ten and signed as the last, bearing date the 19 th of October, 1725. That the Defendant Hett, therein sent to the said Funnel a Bill of Loading for four Bar­rels of Flour, Marked M. and desired him, when he shipt them for Amsterdam, to mark them from 4 to 11. And it also appears by another Letter, proved to be of the same hand writing with the former two Letters, but signed Rene Hett, by the writer of the Letter, and directed also to said Funnel dated the 15 th of April, 1726. by which he desires said Funnel, when he shipt the Eleven Barrels for Holland, to fill the Bills of Lading with the name of Blanche Dubois; and to be so kind, not to tell who sent them to him. And it appears by another Letter from the said Peter Funnel, to the Complainant Pacheco, dated at Boston the 27 th of August, 1727. and duly proved to be his hand-writing, That he therein says, That all the Snuff he had received of the Defendant Hett, was Eleven Flour Barrels full, which he shipt last year, per his Order, on board the Boston Pink, William Roby Master, for Amsterdam; that the Bills of Lading were filled up by his Order, in the name of Blanche Dubois, the reason of which he would see by one of Hetts Letters there inclosed; And that he had likewise enclosed two more of them, by which he would see the weight of Eight Barrels of the Snuff; and for the weight of the other three, he had not sent him it. And that as he found Mr. Hett was acting the unjust part by him, (as well as by the Fatherless Children of Mr. Fresneau) was the occasion of sending Hett's Original Letters, that it may bring the Affair more easily to light. And by the Deposition of William Beekman, Mariner, it appears, the Defendant Hett, sent about two years ago four Barrels, for which he gave Bills of Lading as Flour, and carried them to Boston: That his Negro, by his order, rolled them out, and came afterwards to the Deponent, and told him, that the Barrels blowed much, and made him sneeze, and that he was sure it was not Flour, but Snuff; whereupon the Deponent complained to Mr. Funnel, to whom they were sent, of the Risqueing his Vessel, by send­ing Snuff instead of Flour; who replyed, He knew not what to think of it; and says, that to the best of his Remembrance, Mr. Funnel told him, it was Snuff: And further saith, That one Rolls, a Mariner, told him, That about two years ago the said Hett had sent four Barrels by him, as Flour, to Boston; and that in the Impost-Office at Boston, it was discovered to be Snuff, which put him to trouble there. And by the Deposition of Thomas Hammond, it ap­pears, that in the year 1724▪ on or about the Month of October, Mr. Rene Hett in Company with Mr. Fresneau, proposed to him, That if he would take any Snuff on board, on his, Hett's account, the Deponent should have half of the neat produce of what he sold for, not mentioning any quantity, that being left to the Deponent to take what he pleased: That the Deponent re­plyed, He would not do any such thing, for the consequence thereof would be dangerous to his Captain and himself. Upon which Proofs, it was insisted, That tho' they don't expresly prove that the Snuff so shipt off for Boston, and offered to be shipt, as above, was of the Cargo of the Ship Victory, deposit­ed as aforesaid, yet considering so great a Wantage there is of it, as before appears, and the several fraudulent and secret Circumstances by these Proofs, and other the Proofs before, to the other Charges, appearing, and that there's no Proof that the Defendant Hett had, or that this was of any other Snuff, and that had it been of any other Snuff, there was no need of such disguises [Page 32] and secrecy; for no Man can be afraid or ashamed to own what is his own; and that People are generally more saving of their own Effects, than to offer one half of the neat produce for the Sale of them; and that from thence, there's the most violent Presumption (which amounts to full Proof) that this, as well as the twenty Barrels concealed at Bieus, was of the Cargo of the Victory, deposited as aforesaid; and also, there's a like presumption, that the rest of the Snuff wanting, has been in such fraudulent manner concealed and made away with; and that therefore Notwithstanding of the several positive Denyals upon Oath, by the Defendant Hett, in his Answers, of the matters of this 19 th Charge, the same appears fully to be made good.

Proof of Charge XIX. As to this, It appears confessed by the Defendants Answers, That Mer­chandize was bought in Holland for the price of the Snuff shipped by Hett and Fresneau; that they had other Moneys there at that time, with which goods were also bought, and so it came to be mixt in their Trade afterwards, so that they can't render an Account of the Profits by Trade there-with. And from Authorities shown, it was insisted on to be apparent, That it was the antient Law of England, and that its now the continued Course of the Chancery at home, to compel Executors and Trustees trading with the Testators or En­trusters Money, or letting it to Interest, to account for the Profits of the Trade, or to pay such Interest; and that the Laws of Nature and Nations, and of common Reason, were accordingly: And that all the Reason of these cases, was here, and much more, in so far as so great a number of Frauds, Perjuries and foul-Dealings do Evidently appear in this case, beside what fur­ther may be presumed; and so great a number of Contrivances of Delay and Vexation to tne Complainants, in the Course of this Suit, to hinder the com­ing at Justice, that the like of both, has not in any one case, in all Pro­bability, ever appeared.

Upon the whole, and hearing what could be alledged by the Council for the Complainants, and for the Executors of Andrew Fresneau (the Defendant Hetts Council not attending, as aforesaid) and upon mature Deliberation had thereon, this Court was of Opinion, and did Order and Decree accordingly.

Charges 1, 2, 3, 4, 5, 6, 7, 8. Decreed on. THAT the first Eight Charges in the Bill appeared to be sufficiently made good, and therefore, that the Defendants do come to a fair account with the Complainants.

Charge IX. Decreed on. That Notwithstanding the Probabilities, Reasons, Arguments and Case cited, to make good this Charge, this Court cannot determine that D'Rossel did as is charged.

Charge X. Decreed on. That what Charges appear to have accrued upon the French Goods separately, [Page 33] ought not to be charged upon the Spanish Tobacco's; but what was jointly upon both, this Court seeth no method by which a proportion can be made; and had not the French Goods been joined, it appeareth not but that there might have been the same Charge upon the Spanish alone.

Charge XI. Decreed on. That such Debts as were contracted by Charges in Defence of the Spanish Tobacco's, by D'Rossel, and paid by the Defendants since his departure, ought to be Chargeable on the Spanish Tobacco's, but his other Debts not Chargeable thereon.

Charge XII. Decreed on. That such part of the Articles as appear to have been, bona fide, paid on account of the Spanish Tobacco's, be allowed.

Charge XIII. Decreed on. If, bona fide, given for services concerning the Spanish Tobacco's, the gifts to be allowed, but not the Seventeen and a half per Cent. Commissions, other­wise than as herein after directed.

Charge XIV. Decreed on. No Dispute about.

Charge XV. Decreed on. That neither the Five per Cent. for Receiving the Snuff and Tobacco, nor the Five per Cent. for the Delivery thereof, ought to be allowed the Defendants, but that what is Reasonable for their Pains, Care and Labour about the same, be allowed, with Reasonable Storeage.

Charge XVI. Decreed on. That the Sales of the Tobacco and Snuff appear to be Fraudulent, & made without sufficient Power, and no absolute Necessity of making them for the Preservation of the rest; and therefore no Commissions, for making the Sales, ought to be allowed.

Charge XVII. & XVIII. Decreed on. That the Defendants be accountable for all the Snuff that came to the hands of Fresneau and Hett, and not delivered to the Complainants, reasonable Allowance being made for Wasting and Dusting: And that the twenty Casks of Snuff, now in the Custody of Robert Lurting, one of the Masters of this Court, which was concealed in the Cellar of Mrs. Bieu, by the Defendant Hett, be delivered to the Complainants, as part of the wanting Snuff.

[Page 34] Charge XIX. That the Defendants shall not account for the Profits they made by Trading with the Moneys arising by their Sales of the Snuff in Holland & England, But for the neat Produce thereof, and the Interest of so much thereof as over paid them from such time, as it may be reasonably supposed the said Moneys arising by the said Sales, might be received here, until they shall pay the same; and that the Defendants be allowed Interest for the Moneys advanced by them, till they were repaid the same. And that such Sum or Sums of Money as ap­pear wrongfully to have been received by the Defendants, from the Com­plainants, or any of them, that the Defendants account for the same, with Interest from the time the same was received, till it is repaid. But that the Executors of Fresneau be chargeable with no more of the Thirteen hundred and Ninety seven Pounds eighteen Shillings & three Pence, paid by the Complainants to the Defendant Hett, than for what came to the said Executors hands.

Further Orders of the Court.And this Court was further of Opinion, That what ap­pears to be the seperate Transactions alone of Hett, he alone is to be accountable for the same; and in like manner of Fresneau; But that, what shall not appear to have been seperately Trans­acted, they shall be joyntly and severally chargeable therewith.

And in regard that it appears by the Defendant Hett's own showing, in his first Answer, that no more Commissions than that of Five per Cent. was pre­tended to be agreed about, between him and the Complainants, and that he was only to receive the Charges in Cash, & to take Bond for the Commissions, and that the 1397 l. 18 s. 3 d. was pretended to be the charges, and yet above Seven and a half per Cent. Commissions do appear in the body of that account, which Account, by the further Answers and Proofs, appears not to have been shown to the Complainants, till paid by them, and therefore had there been such an Agreement as is set forth in the first Answer (which is not proved) it was a mainfest Fraud and Imposition, first, to take Seven and a half per Cent. in Cash for Commissions, when only Five per Cent. was (pretended to be) agreed about, and afterwards to insist on and take Bond for the same thing, so before paid in Cash, and over paid; and it being agreeable to the Rules of na­tural Equity and Justice, that no man take benefit by his own Frauds, Im­positions and unjust Actions, and to Relieve Persons deceived, from Cheats and Impositions put upon them; and it being shown to this Court, by the continued Practice of the Court of Chancery of England, that Relief is there had against Bonds, Deeds or any other Writings whatsoever, where Fraud and Imposition was the Cause of the making them; and that in Cases much Less apparent than this, and because none of the matters set forth in any of the Defendants four Answers, appear proved to justify this pretence of Ten per Cent. Commissions for Receiveing and delivering the Tobacco's deposited with Hett & Fresneau (for Five per Cent. whereof, its confessed, this Bond was granted) & for that the pretence of an Agreement by D'Rossel to pay those Commissions, set forth in the Defendant Hetts Affidavit, in order to entitle him to Commissions to Examine beyond Seas, seemeth very Improbable, in so far as no Writting or Proof is pretended to prove that Agreement, but the Ex­amining of D'Rossel; and that had such an Agreement been, its unlikely that it should have been forgot in every one of the four Answers of the Defendant [Page 35] Hett; And for that were it proved, its apparent, that neither the India Company nor D'Rossel had Power to charge these Tobacco's with any thing further than the necessary Charges concerning the same, and so such Agreement would be Void, as being made by one who had no Power to make it. And upon the whole, this Court was further of Opinion, and did therefore Order & Decree, That the Bond entered into by Pacheco, De Lara and De Costa, in 1500 l. to the Defendant Hett, dated the 25th of November, 1725. Conditioned for the Payment of Five Pounds for every Hundred Pounds worth of Snuff he should deliver to them, for the use of Messieurs Solomon De Medina, Mosesson and Company, remainder of the Cargo of the Victory, every Pound weight of Snuff to be accounted at Eleven Pence, and that within three Months after the delivery thereof▪ Be, and the same Bond then was Decreed to be, utterly void and of none effect; and the Defendant Hett then was ordered and decreed to bring, or cause the same to be brought into this Court to be Cancelled and Destroyed; and the same Defendant Rene Hett then was Ordered and Decreed for ever to desist, from any further or other Prosecution whatsoever, of, or upon, or concerning the said Bond, and perpetual Injunctions were Decreed to issue accordingly. And it was further Ordered and Decreed, That the Sheriff of New-York do bring into this Court to be Cancelled, the Bail Bond entered into by the Complainant Pacheco, and his Securities, upon the Prosecution there against him, upon the said Bond to Hett; and that the Ne Exeat against the said Pacheco be dissolved; and that the Sheriff do deliver up the Security, taken thereon, to be Cancelled; And that the Defendant Hett, do pay to the Complainants, their Costs at Law, and in Equity, occasioned by the Prosecu­tion of the aforesaid Bond and Ne Exeat; and that the Defendants do pay to the Complainants the full Costs of this Suit.

And it was then referred to Robert Lurting and Cadwallader Colden, Esqrs. to settle the said Accounts, according to the directions of this Court, and to tax the Costs, and to make Report thereof to this Court, with all convenient Expedition.

Which Matters so Decreed and Ordered, as aforesaid, were ordered to be Absolute, in so far as the same was against the Executors of Fresneau; But in regard that no Council for the Defendant Hett appeared, the same were only to be Absolute against the Defendant Hett, if no sufficient Cause was shewed, either to this Court, to the contrary, on the Twenty third Day of the said Month of December (his Excellency being to depart the next day thereafter for his Government of New-Jersey) Or to the Masters to whom the said Matters were referred, upon their Second Summons.

Afterwards, to wit, the Twenty third Day of February, 1727-8. the said Masters filed their Report concerning the said Accounts, which Report is in the Words following, To wit,

Afterwards, to wit, the 2 d day of March, 1727-8. Capt. Matthew Norris, Commander of his Majesty's Ship Lowstaff, Presented a Petition to this Court, setting forth, That the Complainants in this Suit, sued as Agents for the King of Spain, That he had Orders to seize Spanish Ships and Effects, as in time of War, that he had lately Seized 4OO Bags of Snuff, part of the same Cargo, and Libelled it in the Court of Admiralty, and after regular Proceedings there, that it no way appeared the Property was altered from the King of Spain, and therefore the same was Condemned; and therefore Prayed, That what might be Decreed in this Suit, might be to his Majesty's Use. Whereupon it was Ordered, That Cause be shown, on Fryday then next, Why the Prayer of the said Petition should not be granted? And now at this Day, to wit, the 8 th day of March, 1727-8. upon Notice duely given, it was moved, That the Report of the Masters aforesaid should be read, Which being accordingly read, it was moved, That the same be absolutely Confirmed, & that this Court would Decree accordingly. Which Motion Joseph Murray and William Smith, Council for the Defendant Hett, appearing, did oppose, and insisted upon their Exceptions to the Decree in the said Masters Report. To which it was Answered by the Complainants Council, That it was entirely irregular to Offer any thing to that purpose at [Page 41] this time, in so far as they have had time enough to file their Exceptions to the Masters Report, according to the course of the Court, if they conceived their Clyent wronged thereby; And that it was unprecedented to Offer any thing against a Report, without Exceptions thereto first duely filed. How­ever this Court did order the Depositions and Proofs in this Cause to be brought, and so much thereof as related to the Exceptions in the said Masters Report, to be read; And the matter being debated by the Council of both sides, this Court was of Opinion, That the said Report do stand Confirmed, if no further matter appeared why the same should not. Whereupon the said Joseph Murray, of Council for Capt. Norris, moved and insisted, that James Alexander, Council for the Complainants, should be ordered by this Court as Advocate-General of of this Province, to support the said Petition of Capt. Norris.

Whereupon the said James Alexander Surrendered to his Excellency his Commission as Advocate General, and prayed his Surrender might be accepted of, and that he might not be so Compelled. Which Surrender being accepted of, Cause was showed why the said Petition should not be granted, viz.

As to the first Fact therein alledged, That it appeared by the Bill and 2 d Answer, That this Suit was for Relief to Medina and Company, for the Snuff wanting, and to the bearers of their Orders, for the 1397 l. 18 s. 3 d. and the 1500 Pounds Bond in their own Right, and not as Agents to any Persons.

2 dly. As to his Orders, it appeared they were from the Admiralty, who had no Jurisdiction or Power beyond High-Water Mark, & therefore his Orders of no further extent; and that he could not by virtue thereof Enter into any house here lawfully, to Execute his Orders, by seizing upon any thing; and that it was notorious, that the Preliminary Articles of Pacfication were signed on the part of England long ago, and that we have had several accounts that they are now so on the part of Spain; for both which Reasons, tho' the mat­ter in question had been the King of Spains, (which they expresly denyed) he ought not to intermedle himself in this Affair; and as no other Person here had any Orders or Power to seize or affect the matter in question, then nothing could lawfully affect it.

3 dly, As to the Property being in the King of Spain, and that the Admiralty could see nothing that had altered it; It was insisted, That was no Reason why this Court, or any other Court, might not see Evidence to prove it was altered. And thereupon it was insisted, That the Ambassador of Spain's Or­ders to the India Company, to cause the Tobacco's to be delivered to Medina and Company, with their Orders accordingly, and the acceptance of them by the Defendant Hett, was by the Laws of Nature, of Nations, and of Merch­ants, a sufficient vesting of the Property in Medina and Company, unless there was an express Trust proved; which in this case appeared not. Whereupon Joseph Murray, of Council for Capt. Norris, prayed further time to Answer the Causes showed against the said Petition.

And it appearing to this Court, that as to the 1500 l. Bond, and the 1397 l. 18 s. 3 d. and Interest thereof, Relief could only be due to the Complainants Pacheco, De Lara, & De Costa, for the same, not as Agents to any body, but in their own right.

[Page 42]Therefore this Court as to so much, and the Costs, did Order the matters herein before Decreed and the said Report to stand absolutely Confirm­ed and Decreed, to be Observed and performed, and the Moneys found due by the said Report, to be paid to the Complainants with Interest by all Parties, according to the true intent and meaning thereof.

And it is this present Day, to wit, the Eighth Day of March, in the first year of the Reign of Our Sovereign Lord George the Second of Great Brittain, France and Ireland, King, Defender of the Faith &c. By his Excel­lency William Burnet, Esq Capt. General and Governour in Chief of the Provinces of New-York, New-Jersey, & Territories thereon depending in America, and Vice Admiral of the same, in this High & Honourable Court of Chancery, and by Virtue of the Power and Authority thereof, Ordered and Decreed accordingly.

And that as to the remainder viz. 82 l. 0 s. 1 d. and the 20 Barrels of Snuff in the Custody of Robert Lurting, that the same Report and Decree do stand also absolutely Confirmed and Decreed, unless sufficient cause is shown why the same should not by Monday next, on the part of Capt. Norris.

And it was further moved; because Cadwallader Colden Esq was gone out of Town, that Robert Lurting, Esq do make the Report of the Costs to this Court, with all Expedition. Which was Ordered accordingly.

AFterwards, to wit, the 12th day of March, Robert Lurting, Esq one of the Masters of this Court, filed his Report of the Costs in this Cause. Which Report follows, in these words, viz.