Lee vs. Bancroft. Ipswich June 1771.
Cun. 173. Concealment of Intelligence, a Fraud. Each Party ought to know all the Circumstances.2
79 days from G[ordon's]
sailing to the Insurance,4
which was a good Chance to have heard of her Arrival at any Part of the W. Indies.
J. Pedricks Deposition. Gordons Protest. Jab. Harlow's Deposition.5
Captn. Jos. Howard.
Arrived from M[artinique]
7th. Novr. Saild, 7. Octr. Frenchman arrived from Guadaloupe. Deposition vid.
I asked whether the Vessells were in Time or
whether the Chances were fair. A few days after Mr. Hooper8
came into the office and enquired if Lee said nothing of his having a Chance. Then he has taken you in, &c. From 20 to 26 or 27 days a common Chance.9
I would not have wrote under 50 Per Cent. I did not know there was such a Man as C[aptain]
Howard. Never heard of his going to the W. Indies. I have been Master, but never was strictly bound up.
3 Vessells together.10
Dont remember any Questions put to him. No dispute—all seemd fair. Hooper came in and said We were taken in. Somebody said We should have looked to our Title. Never knew a Policy underwrote without enquiring when the Vessell sail'd. Something said in the office about the Vessells being over[set] before she sail'd.
At the Time when Lee was in the Office and Cabbit11
present talking with Lee. It appeared to me to be in Time and a customary Praemium. One said she was fair, in season, in Time. They often take it from the 1st. underwriter [who]
enquires the Circumstances. Those that follow sometimes take it for granted.
Lee wrote the Minutes himself. Cabbit said fair Chances I suppose. Yes. I Asked how long those Vessells had been out. Lee made a Pause. Lee said the 1st. Advice will give an Account of 2 of em. And it did. 2 were taken. I relyed upon Lees Honour that he would not put in an unfair Chance. 30 days a Chance. I did not know of the Arrival of Howard. I would not have wrote upon any Consideration. Dont remember Powers13
being mentiond. Fellows not mentiond that I remember. Many Vessells at that time had long Passages. Knew Howard was an [Eastern?]
Master. But should not have thought to enquire W. India News of him.
Jona. Gardiner Junr.
Nothing said of Howards Arrival. I did not know of it. Coll. Lee once scratched his Name out once and said he
never took desperate Chances, and never put in unfair ones. A Man of Character declaring it is a fair Chance is generally satisfactory.
Jona. Ropes Junr. I underwrote for Pedrick, and was a good Mind to take £20 more for Lee but did not. I did not know of Howards Arrival. I knew when she sailed. But it might be because, We must write on all 3 or none. The Risque not so great when a Number, as on one. Dont know that ever I underwrote first without enquiring when the Vessell sailed, and the Circumstances.
Lee said fair Chances. I had underwrote upon Gordon before, and did not know of Howards Arrival. I have made several Voyages in 14 Weeks. Hoopers News was received in the Office with surprise, and uneasiness.
Warwick Palfry. She might have returned and made her Voyage in 79 days. I knew a Vessell that performed 3 Voyages [nearly?] in 10 Weeks and 3 or 4 days.
Saml. Ward. Lee said he never put a Vessell in out of Time and never took a desperate Chance.
Gordons Sailing Orders.15
2. Timothy Cunningham, The Law of Bills of Exchange, Promissory Notes, Bank Notes, and Insurance
174 (London, 3d edn., 1766). The language here was drawn from two cases in which the facts favored the insurers rather more than in the instant case. See De Costa v. Scandret, 2 P. Wms.
170, 24 Eng. Rep.
1723) (Insured had heard that ship looking like his was taken); Seaman v. Fonereau, 2 Str.
1183, 93 Eng. Rep.
1743) (Insured had intelligence that vessel had been leaky and was lost sight of just before a hard gale).
3. That is, Cunningham, Bills of Exchange
178–179, 184, citing Rooke v. Thurmond (unreported, K.B.
1743) (Dictum that policy void if insurers could prove that insured knew that another vessel, which sailed from Carolina ten days after the insured vessel, arrived in England seven days before the underwriting); Green v. Bowden (unreported, K.B.
1759) (Policy void where insured had informed insurers that his ship, which was lost on 25 Aug. between Naples and Leghorn, had been safe in Naples on 8 Aug., when in fact she had been safe there on the 3d).
4. That is, 79 days from 4 Sept., the date on which the master, Nicholas Gordon, sailed from Marblehead, until 22 Nov., the date of the underwriting.
5. The deposition of Joseph Pedrick, owner of the other half of the enterprise; the protest of the master, Nicholas Gordon, on the loss of the Merrill;
and the deposition of Jabez Harlow, master of the vessel which finally brought Gordon and his crew home, may be found in SF
132239. This evidence supports the allegation that the master's orders were to proceed to Martinique. For relevant portions of the protest and other evidence on this question, see No. 11
6. Captain Howard's deposition, “Sworn in Court, June 19, 1771,” states in part that
“About 14 days before I left Martineco one Monsr. Misinaire arrived there from Guadeloupe of whom I inquired if any vessels was there belonging to Marblehead or Salem. ... As to vessels he told me there was none belonging to Ither of those places. ... When I arrived at Marblehead I was inquired News of by Sundry persons and at Salem when I Entered but can't Remember any persons Particularly. I heard no news of Capt. Nichols Gordon belonging to Marblehead from the time I left it to my return [3 Nov. 1762].”
7. William Shillaber, the underwriter whose successful defense to Lee's action started the litigation. See note 2
above. Shillaber's deposition of 3 Nov. 1770, with some further details of the underwriting and of the conversation with Hooper, is in SF
8. Robert “King” Hooper, Marblehead's wealthiest merchant, and Lee's brother-in-law, Roads, History of Marblehead
350, 354; Stark, Loyalists of Mass.
9. That is, a chance to have heard news of the vessel's safe arrival. Here the “Chance” was 34 days, the interval between the departure of the Merrill from Marblehead on 4 Sept. and Howard's departure from Martinique.
10. Presumably John Hodges (the “C” standing for “Captain”), whose deposition in the file of Goodhue v. Lee indicates that he was present in the insurance office at the time of the underwriting. SF
131923. Lee insured two other vessels with the Merrill.
See Shillaber's testimony, text
11. Josiah Cabot, one of the underwriters.
12. Joseph Hodges, one of the underwriters.
13. Another Marblehead captain who departed in one of Robert Hooper's vessels at about the same time that the Merrill
sailed. See Shillaber's deposition, cited in No. 11, note
14. One of the underwriters.
15. Gordon's orders are in SF
132239. In his deposition, sworn in court in Nov. 1770, also in SF
132239, he contradicted their impact. See the relevant parts of each as set out in JA's minutes
in No. 11.