having any Account or Invoice of the Goods sent me from you, cant support an Action of account against them, so you had best send the Invoice to the Merchant you may hereafter employ according to my former request which I persist in. The difference between the Ballance of your Account Current and the Settlement arises principally on your miscasting the Interest. There is an Order of £20 sterling on Jn Phillips never paid he having been in Canada ever since it was drawn, and is returned. They also refuse to allow the recharge of £10: 10: 0 sterling on the Diamond. But the principal thing that induced me to ease away on this Article and the Objections to your Charges of Interest, some of which are manifestly wrong, is that the whole Interest is disputable here. Compound Interest is against our Law, and you would be at the Mercy of a Jury wether to allow you the simple Interest, which they would certainly disallow unless an express agreement were proved of which I had no Evidence and they deny that it was expressly agreed, but tho't themselves obliged to allow it on the Custom (which our Jury dont regard) provided I would make the deduction for compound Interest miscasting &c in your Account as by the Settlement inclosed will appear. As to arresting them and holding them to Bail for the Ballance according to your Account Current you to repay what you might receive by Halliday and Dunbar might have been at the risque of exposing you if not myself to an Action for Damages which I did not chuse for myself nor think eligible for you especially as you direct me in all your Letters to avoid Extremities nor do I think you would have thanked me for subjecting you to an Action for holding them to Bail under the uncertainty of what is rec'd from Liverpool. I therefore tho't it most for your Interest to take their Bond to Condition for the payment of £800 sterling with 67 Cent Interest in Case said Halliday and Dunbar have not or shall not pay it to you so as soon as you have rec'd it you will inform me there of as they will want their Bond up or discharg'd on such payment. They have also drawn Bills on Holliday and Dunbar for the Ballance of £203: 13: 9 sterling, the first of which I inclose. If I can secure you any thing p' M' Dennie I will but I find that while you and he were in secret Treaty about a Composition with you and the rest of his Creditors of which you never informed me I say during this Treaty which I am astonished you should be so private in I find he has made over all his Estate real and personal for the Security of his Creditors before your AccoTM came authenticated and this in Consequence of Letters which he shewed me from you among others agreeing to the same, how this Affair was transacted I cant exactly find out, but he says you left it to him to act for you and you mention in your Letters to him that I shall not proceed till I hear further from you. It seems it would have been as regular to have informed me of the whole of your proceedings with you him of which I am now at a loss for the whole. He says he informed you of what was concluded upon by him in your behalf and with the rest of the Creditors in June or July last but hath no answer. I never heard of such Composition being on foot till since your last Letter and that by him M' Dennie when it was too late to secure any thing. It is a strange way of transacting to send a power against a Debter and then secretly give him a Letter of Licence as you have in Effect. Could you expect in this Situation of his Affairs I could arrest him break up his family and business that the Creditors agreed he should continue, for to Goal he declares he will go if only on the assurance of the Composition promised in your Letter and thereby subject you to an Action of damages, but to what purpose would it be to commit him after all his Estate is made over, in short He says by your Letter to him you left it to him to act for you and that he will do you the same Justice with the rest of his Creditors. I believe he is an honest Man, and will perform it if he can so you must een settle it between you, should I find any of the Incumbrances on his Estate cleared or the Conveyances defective I will endeavour to serve you tho' I see little prospect I hope as you have begun, you and he will be able to settle the Affair to your mutual Satisfaction. Inclosed you have with the first Bill from the Davis's for the £203: 13: 9 on Halliday and Dunbar, a Copy of their Bond and Settlement of the Account Current, besides they say they have remitted you £150 which they agree shall go towards the Consignment or joint Concern on Commission mentioned in your last to me; this will appear by a Memorandum on the Schedule annexed to said Bond for said £800 if not paid by said Halliday and Dunbar so that the said Commission Account of the Goods consigned in Company you'll perceive lays open as before observed. I am yours &c. J OTIS. TO GEORGE JOHNStone and OTHERS, ASSIGNEES OF WIGHT AND GRAHAM. BOSTON, Jany 25th, 1765 GENTLEMEN, I recd yours of the second of Nov' and am glad you approve of my Conduct with regard to M' Hurd. He is very unjust in charging me with Severity. He must be conscious I have done nothing but what his Conduct will justify to all the World. You recovered Judg against him at the Inferior Court in Octo' last for the sum of £3268: 15: 0 sters being the Condition of the Bond with Interest. He has appealed to the Superior Court which setts the latter end of February, in the meantime having given Bail to your suit he has shut himself up from his other Creditors. I shall inform you of every step I take in relation to this Affair. As you must have recd his proposals of a Composition before this, I would only mention this for may your Consideration, that if he delivers himself up to save his Bail he 1 Nathaniel Wheelwright. See 2 Proc., x. 52. know not, but it appearing very thin to me, I chose to take him if I could but missing of him as above I sent in a few Minutes to the shop but he had ordered it to be shut upon seeing the Officer go into the house. What security the Officer has got I am not able to say as he has not compleated the inventory of y Goods in the house, tho I fear it will prove very short of your demand especially as there is only an Equity of Redemption on the real Estate, he having mortgaged it last Summer for a debt due to a Gentleman in Bristol tho' he says he has paid most of it off. One reason I have to think your chance is as good as if the Officer had gone first to the shop is, that it would have been too late as it turned out to have gone to the house, for twenty Writs were out after him in consequence partly of yours but principally by reason of the general distress on Wheelrights Acco' besides if the Officer had gone to the shop others would have entered with him and before he could have inventoried his Braziers Ware which is what he deals in, the other Officers would have come in and divided stakes by attaching. M Scollay declares his intentions are to pay all their equal proportions and he says he has enough to pay all their whole dues if time is allowed him, this is always said in like Cases, so will not gain much Credit. What the exact State of his Affairs is I believe he dont know himself. For now people speak freely, which is very dangerous here of a Merchant, damages for defaming them being excessive in Comparison of what is given in England. I think £800 is the highest I can find in my Law books, whereas it is common for a merchant here to recover a thousand or two cool Guineas for defaming his Character and soon after to break or run away This was the Case of one Fletcher here some Years since, who my old Cahill can tell you more off, if you think it worth your Enquiry. Wheelright recovered £2500 of two brave Officers who served at Quebec only for saying the French told them they had Intelligence of the designs of the English from their friend Wheelright at Boston. M' Scollay has in general obtained the Character of an honest Man who has over traded himself and has met with some losses and tho' he was reckoned a slack paymaster it is remarkable that I cant find he was ever sued till last Week except upon a disputable Case, wether he as Owner or the Insurers were answerable for a small Ransom Bill. I should think it for the Interest of all his Creditors to come to as speedy a Composition with him as possible, as keeping him shut up, as he is now, is only maintaining his family at their own Expence. I am not yet satisfied wether my power enables me to compound. if it did should choose to know your minds, in the mean time shall prosecute the Suit. If it comes to a Composition or not I repeat my desire that you would send a new Power to some Merchant here, as my profession is only that of the Law it is impossible I should know the course of peoples trade and consequently their cir cumstances so well as Gentlemen in trade. I cant but again mention and lament your not sending the papers and Acco's authenticated in season had this been done I might have secured all your demands. I reed the first Copies of ye Commission of Bankruptcy of Wight and Graham in your last which came to hand but a few days before I found myself obliged to sue M' Scollay. M' Young still declines paying and therefore you will take such Measures about sending the proof of his Debt as you think fit. Your humb. Servant Via Bristol and Hull. J: OTIS |