#### Executors of Andrew Holmes and co*. vs.*Bigelow and Proud and others.

«ASBEíS^

Kbfcft ling and seil|' right carg^for payment of 0f their wag-Tliey captain or !!^apartner jn ship is weld to his responsibility °oyagéjlos¿if adventure, "unless lié preSsiy dis-^voyage ^ Assignees deceased'and ll!S exe"’ titled to the °f the fund assigned, -to be applied to *498. ■ of iue assign-góartoiSeréd to deliver up •ers wíio °ai'e settle11S with him finally.— made able with nies ¡fcoming hands from the time ing-^tlienTtfll away.

*497[Tried before Chancellor Waties, Charleston,

March, 1812.]

THIS case comes before the Court on the report the master, and exceptions .to that report; The riume-rous and various claims insisted on,- and the great cacy in which they are involved, would hate rendered it a most difficult and laborious task to decide on them, if the particó had not consented to refer them to accountants, whose very able investigation and award make part of the master’s report,- • and to which the parties have submitted, with a few exceptions; The first exception made id to the award of $7410 80, to he paid „ out of the proceeds of the cargo of the ship' Hindostán, for the balance of seamen’s wages; This exception must be sustained; The seamen by having libelled arid • sold the ship and received the proceeds, have exhausted tilo only lieri which they had for their wages, arid for the balance they must resort to ^lieir remedy at law,- by an action ág'airist the Captain or owners; A second exception was made to the report oil behalf of the Howard Allen,- who by the report is considered as a part; *tier*in the voyage, and his claim adjusted as such; counsel has contended that although originally a part- „ , , , , , ¡tier as to the voyage iirst contemplated,- yet another voy-*498a^° ^een ®u^s^tutcd without his consent, he i'á noi kound as a partner, but is entitled as owner of oné fourth of the-ship to the original value of such part, and also to freight. There appear to be no sufficient grounds for this claim, either in law or in fact. II. Alien and Bigelow ami Proud were the first projectors of á mercantile enterprise, and although this was abandoned, & there was no express evidence of his assent to the sub-se{Iaen^ one agreed on by the other parties, yet it maybe fairly inferred from all the documents, that he was privy to and concurred in it. There was certainly no evidence ai1 ^ act on his part which signified his dissent. The case therefore cited from 4 Bac. *611, which*was relied on b*s favor is a strong one against them. In that casa was held that although a part owner may dislike a voyage, in which the ship is lost 5 yet it shall be intend-et* a v°yaSe> with his consent, if there is no express pro-ofhibiüon proved. This exception therefore on the behalf of the defendant;, II. Allen, must be overruled* A third CXCeption made to the report, was on the part of the defendants, Bigelow and Proud* because the referees have awarded to John Everingham the principal sum of g7310 3-5* with interest, and the further sum of gl579, with interest* for insurance on the return voyage ; and also 81204-, with interest* to John S. Adams for insurance likewise* which said sums are directed to be paid out of the general fund, previous to any' decision among the claimants* The defendants, Bigelow and Proud* have excepted to this part of the award, on the ground that the whole deficit chargeable to them, (being 822*501 48, with damages & interest,) is directed by the award of the referees to be deducted out of their moiety of the funds* in which deficit is included one half of the said sum of £57810 35, -and that of course the other moiety of the said funds, should be charged with the other half of the said sum, and that the other sums for insurance ought not to be deducted prior to a division* as those insurances might not have covered any of their interests. The first part of this exception which-*499respects the'27310 35, appears to be well founded, and. is therefore sustained. And in order to correct the erroneous effect of the award, which directs that the whole of the said sum shall he deducted out of the funds previous to any division among the claimants, it is ordered and decreed that a moiety of the amount of the principal and interest of the said sum- of 27310 35,. shall be set off against the 222,501 4-81, with the damages and interest thereon-. As to- the two remaining-sums for insurance, it does not sufficiently appear to the Court that the insurance might not have enured to the general benefit in the event of a loss, and therefore Ido not feel disposed to alter the report in that respect. The exception then as to the two sums of gl579> and $1204^ is overrruled. A fourth exception has- been made to the report on behalf of John Stoney and S. Adams, who are also defendants in the case, on the ground that* they are entitled to the balance directed by the award to be paid to the executors of A. Holmes and co. under an assignment from the said A. Holmes and co. for the-benefit of a certain class of creditors. This- exception is sustained',, and it is therefore farther ordered and decreed that the said balance adjudged by the award to he paid to the executors ©f A. Holmes and co. shall' he paid to the said defendants, John Stoney and John S. Adams, the assignees under the said deed of' assignment to be by them applied-to the uses-thereof. The report is in all-other respects confirmed' ,4s the-whole of the funds appear to be in the hands of the defendant- John Bolton, in Georgia, I am inclined to adopt tiie mode recommended by the report for disposing of and dividing them among the parties according to their several rights. But the counsel are at liberty to move for any further order on this point. The costs of suit must be paid out of the general funds.

Thomas- Watibs.

March 7, 1812.

The court after hearing the observations and argu-'-sueuts of the solicitors for the complainants and defend-. *500ants, direct that John Bolton of Savannah, in the afeite of Georgia, one of the defendants in this case, do forthwith deliver all the monies, bonds, notes, choses in action, cotton, goods and merchandise and other articles arising from the sales of the cargo of the ship Hindostán mite Christopher Fitzsimons) John Stoney, and Robert Max» well, that they shall dispose of the said cotton, goods, merchandise, and other articles either at Savannah or in Charleston, for cash or credit, as they may think most for the interest of the concerned y that the said Christopher Fitzsimons, John Stoney, and Robert Maxwell, dor receive and collect the said bonds, notes, and chosen in action, and that they do pay away and distribute the said monies, bonds, notes, choses in action, cotton, goods? merchandise, and other articles, according to the decree» 'of this courty or should it he deemed more advisable, that they do distribute the said bonds, notes, choses ia action, cotton, goods, merchandise, and other articles, specifically, among those entitled to the proceeds thereof, according to the said decree. It is further ordered that the said Christopher Fitzsimons, John Stoney, and Robert Maxwell, shall be chargeable with interest at the rate of seven per cent per annum, upon all the monies, received by them as aforesaid, from the time or times that they shall be received, and a reasonable time to bo allowed thereafter for the distribution of the same y that they shall also be authorised to adjust and settle all accounts and differences with the said John Bolton, relating to the premises, and to give him sufficient releases and discharges therefor. It is further ordered that all expenses in relation to the said matters, shall be defrayed out of the monies and other funds to be paid and de? levered to the said Christopher Fitzsimons, John Stoney, and Robert Maxwell,

March *%5,*1812,