CCXVII. Lord Keeper Williams. Decree in Chancery, Bargrave
versus Sir Thomas Smythe et al.
February 19, 1622
State Papers C. O. 1, Volume II, No. 4, II
Document in Public Record Office, London
List of Records No. 302
Mercurii Decimo nono die ffebruarii Anno Regni Jacobi Regℯ decim[o]
nono Inter Johem̃ Bargraue qtem Thomã Smithe Miɫ. Johem̃ Wolsten-
holme miɫ Rob̴tum Johnson Aldermañ London Will͠im Canning et
Will͠mũ Essington Defendtℯ
My lord keeper
M
r Justice Jones
S
r Robert Riche
S
r Edward Leeche
fforasmuch as vpon the heareing and longe debateing of the matter this
p̢sent daie in the p̢sence of the p̱ties and of the Councell learned on both
p̱tes, ffor and touching the Bond of 800
li in question against w
ch the pɫ
prayeth releefe, and alsoe touching the pl
tes wronges and losses by him
receaued by the defend
tℯ meanes as he conceaueth, ffor w
ch hee demaundeth
satisfacc̃on and dam̃ages by his said Bill: Itt appeareth y
t the Virginia
Companie here in London about Januarie 1618 graunted a pattent vnto
Captaine Martine ffor him and his assignes free Traffique on the Baye
and Riuers in those p̱tes of Virginia, w
ch belonge vnto the said Companie;
wherevppon the said pɫ. as assignee of the said Captaine Martine, and
relyeing vppon the said Pattent, dyd to his greate chardges furnishe a
Pynnace Called the Edwyne of London, with men and wares of good
valew fytt for the said plantac̃on, and sent the same w
th the said Captaine
Martin into Virginia, Where beinge arriued in May 15° Jac̃ Regℯ, The
said Pynnace as is affirmed, was by y
e then Gouerno
r of Virginia denyed,
debarred, and hindered of the ffree Trade neither was shee suffered to
trade in anie thinge but by the allowance and warrant of the said gouerno
r
vpon paine of death,
by means of
a booke of
lawes imprinted and there
remayneinge, and of private ɫeres wrytt by tenne of the Megazine Com-
panie vnto the said gouernor, which Megazine Companie was then newlie
erected by the Virginia Companie and whereof the said S
r Tho: Smith,
S
r John Wolstenholme and Alderman Johnson are the principall in aduen-
turing in the said Megazine or ioynt stock, w
ch ɫeres were to this effect,
that the goũno
r should not suffer the Tobacco and Sassafrasse to come
over in private handℯ but by the Megazine for the good of the Companie;
By meanes whereof the said pɫ. as hee affirmeth, not onely lost the benefitt
of his free trade, but alsoe his said shipp was inforced to staye there about
13
teene monethes to his extraordinarie greate Chardge and damadge; and
in thend because the Megazine came not ouer as was expected, the pɫ had
leaue to retorne his said shipp to carrie newse to the Companie of the
estate of the Collonie and was suffered to haue some trade. In w
ch said
Pynnace the pɫ. brought over a matter of 3100
li waight of Tobacco for
himselfe and about 5000
li waight belonging to the said Companie and
the passengers; And y
e said Pynnace rydeing in the Riuer here, yt appear-
eth that there was offered 8
s the pound for the Tobaccoes therein, and
soone after the said pɫ
tℯ Tobacco seized in the Custome house for Custome
as the pɫ affirmeth where non [
none] was due, hee being one of the Companie;
But the def̃tes affirme that it was seized by the ffarmo
rs wthout theire
privytie onely to take notice of the Certaine quantytie, To thend they
might haue a defaulcac̃on in theire ffarme from the Kingℯ Ma
tie of vj
d for
everie pound (his Ma
tie haueing graunted to y
e said Companie power to
trade for a time w
thout paieing anie Custome for the good of the sayd
Plantac̃on. And albeit the said pɫ. was free of the said Companie, and
that S
r John Wolstenholme is both a ffarmer and one of the Companie,
Whereby hee might haue taken notice of the said pɫ; yet the said pɫ.
Could not haue his Tobacco againe vntill hee brought a Certifycate from
the said S
r Tho: Smithe w
ch hee Could not p̳cure vntill hee vnderwrytt to
giue 100
li to the vse of the said Companie, By meanes whereof the pɫ
s said
Tobacco was detained in the Custom House aboute three weekes, dureinge
w
ch time the pɫ feareing that the price of Tobacco might fall, and Con-
ceaueing that the best Course for the houlding vpp of the said price was
to buy the said Companie and passengers Tobacco; Hee the said pɫ.
bought 1700
li waight of the said Companies Tobacco at the rate of 8
s
the pound, and paid about 100
li in hand and vnderwrytt for the rest, and
alsoe bought about 4000
li waight of the said passengers, and there being
alsoe then shortlie after a Megazine shipp come ouer w
th 20000
li waight of
Tobacco or thereaboutℯ, the said pɫ likewise bought a 1100
li[292]
waight
thereof of the Companie at the rate of 5
s 3
d the pound and had 14
teene
daies giuen him to put in securitye for the same, wherevpon 4300
li waight
of Tobacco of the pɫ. was deposyted as securitie for the same, and some
of the Companie were appointed to sell the said 1100
li[292] waight for the pɫ.
But the pɫ. not being able to gett sale of his said Tobaccoes, and haueing
then two shipps rideing in the Riuer, readie to goe over againe, and lying
heare at his greate Chardge for want of monies to furnishe the same, hee
the said pɫ wth the Consent of the said defts and some others of the Com-
panie p
rsent retorned the said 11000
li[292] waight vnto y
e said Company, w
th
this speciall agreem
t that the said pɫ. shoulde giue 150
li vnto the said
Companie in Considerac̃on thereof, And if the said Tobacco should bee
sould for more then 5
s the pounde, then the said pɫ. was to haue the increase
of benifitt, but if vnder 5
s the pound, then hee the said pɫ was to loose his
said 150
li and reste satisfied; ffor w
ch purpose the same was to bee sould,
and a noate was made and subscrybed vnder the pɫ. hand, and the said
pɫ. about y
e same time entered into the said bond of 800
li vnto the said
deftℯ S
r Tho: Smith and S
r John Wolstenholme to the vse of the said
Companie before hee Could haue his 4300
li waight deliũ[
d] for the paiem
t
of the said 150
li and of the 100
li soe vnderwrytt for vpon ye deliue[
rie] of
y
e pɫ. Tobacco out of y
e Customhouse aforesaid, and alsoe for y
e paiem
t of
y
e monies vnpaide for the first bargaine of 1700
li waight of Tobacco;
Shortlie after y
e retorning
[293]
of y
e bargaine of y
e said 11000
li[294]
waight as
aforesaid (vizt) wthin two daies y
e said deftℯ sould y
e said Tobacco amongst
thẽselues at 4
s 9
d the pound and 4.3. monethes daies of paiem
t wherein y
e
said defte Johnson was for p̱te thereof both a seller and buyer,
wch sale
the pl' Conceaueth to bee vniust, and affirmeth y
t by meanes of y
e defts
sincking of the price of Tobacco §and§ the detaineing of his Tobacco, the
pɫ soe lost his markett as yt hee was inforced to sell͠ his 4300
li waight of
Tob
9 soe deposyted as aforesaid vnto him yt kept y
e same but at the rate
of 5
s 3
d y
e pound, and alsoe sould y
e rest of his Tobacco at y
e same rate;
Howbeit y
t the said pɫ. was to pay after y
e rate of 8
s ye pound, both to
y
e deftℯ & Company for the sayd bargaine of 1700
li waight, and alsoe for
y
e said passengers Tob
9 as aforesaid; ffor all w
ch wrongs and losses y
e pɫ
demaundeth satisfacc̃on & dam̃agℯ from y
e said deftℯ wth whome hee
therefore dealt as y
e principall of y
e said Megazine Company; Wherevpon
y
e right Ho
ble y
e Lo: Keep̱ (being now assisted by M
r Justice Jones doth
declare y
t the said pɫ. hath greate cause of Complaint, but doth not see
y
t those losses cann be repaired by those deftℯ for y
t wrought in Virginia
in regard y
t S
r Tho: Smith and y
e rest of the def̴tes are not here to bee
charged as private men (they being ioyned wth y
e Companie, and their
actℯ & doeingℯ in y
e name & for y
e benifitt of y
e Company, and therefore
his Lo
p cannot releeve y
e pɫ. touching those geñall wrongℯ in y
e Co
rte of
equity,
ye same being matter appertaineing to ye estate and more fitt to bee
Complained of at the Councell Table, vnto wch Course his lop leaueth ye
pl'. But as touching y
e said bond of 800
li, fforasmuch as his lo
p suspecteth
y
t ye seisure of ye pɫ Tobacco aforesaid was by Connyvancie or p̳curem
t
of y
e Companie, Howbeit it doth not plainely appeare they were y
e cause,
& his lo
p seeth no reason y
e said Companie should reape benifitt by y
e said
staye made whereby y
e price of Tob
9 was sunck, neither can his lo
p here in
equity make y
e pɫ. a gainer of his 11000
li[295]
waight aforesaid vpon a Conceipt
of gaine, there being no monye paid for y
e same
but onely a bargaine in
word, and on y
e other p̱te his lo
p thincks not fytt y
e pɫ. should bee a looser
and pay money out of his purse for y
t hee could not make nor receaue by
meanes of the p̳ceedingℯ aforesaid, Therefore it is thought meete and soe
ordered and decreed by his lo
p (being assisted as aforesaid) y
t the said
pɫ. shalbee allowed and dischardged of the said 150
li and 100
li soe vnder-
wrytten as aforesaid, and y
t the pɫ. shall onely paie after y
e rate of 5s 3d
y
e pound for his bargaine of 1700
li waight of Tobacco soe bought as afore-
said at 8
s y
e pounde
for soe much as is yet vnpaide for: and y
t S
r Robert
Rich k
t one of y
e Ma
rs of this Co
rte shall take y
e accoumpt touching y
e
said bargaine of 1700
li waight, what is already paid for y
e same by y
e
said pɫ. and what y
e resydue vnpayed for amounteth vnto after y
e rate of
5
s 3
d y
e pound as aforesaid and allowed by waye of defaulcac̃on, y
e said
150
li and 100
li aforesaid, and what hath beene alreadye receaued, and
then the resydue remayninge vnpaied and appeareing by his report soe
to be made shalbee forthwith paied by the said pɫ. unto the def̴tes to the
vse of the said Companie, and thereupon the said bonde of 800
li shalbee
forthwth deliũed vpp and Cancelled, and the said noate giuen by the
said pɫ. vpon the retorneing back of the said 11000
li[296]
waight aforesaid
shalbee then alsoe deliuered vnto the said pɫ.
The booke of
lawes p
riudic̃all to
the pɫ.
§by this sale y
e
pɫ. lost 19000
li
fowre shillings§
§this bargaine was
in wryting§
§he ought to pay
for y
e whole 1700
li
waight after 5
s.
3
d y
e pound.§
[Indorsed:] Captaine Bargraves Decree. Virginia April & May 1622.[301]
