881 | To John Bernard

    Hampstead, Feb 9, 1771

    Dear John,

    I have received a Letter from Mr Taylor wherein he informs me that he has paid Mr Pemberton one half of the Profits of the Naval Office instead of one third according to a written Agreement under his own hand; and as you was of Opinion that he could not stop the Money.1 I know not how to think this is so: for surely you would not give an Opinion upon a Case you did not understand & you could not give such Opinion if you had understood the Case.

    The Case is this: Mr Pemberton being about to take a joint Office enters into an Agreement for the Division of the Fees between him & his Partner & takes the Benefit of the Agreement to himself & denies the like Benefit to his Partner.2 Mr Taylor who is the Deputy of both knows of this Agreement & thereby is bound by it in his Manner of accounting to his principals; and yet in direct contradiction to it pays one of his principals more Money than is due to him, & makes that a Pretence for paying less than is due to the other. And for Excuse he has only to say that he had not the original Agreement in his Custody, tho he has often seen it & is perfectly acquainted with the Contents of it. In such a Case as this Mr Taylor would certainly be condemned in an Action at common Law: but I hope he will not drive me to such a Remedy.

    If Mr Pemberton has really suffered any Damage from the Neglect of his Partner, he should have brought in a specifick Account. But that cant be: for as the Intention of the Agreement as it has been explained by Mr Pemberton’s own Practise, was that the Pay of the Deputies should be deducted out of the gross Sum before it was divided among the principals, there can be no Damage accrued to Mr Pemberton but thro’ the Mismanagement of some of the Deputies; & in such Case such Deputy shall make it good. But this is nothing but a Pretence to take a cruel Advantage of the Affiction3 brought by the hand of God upon my Son, an Attempt which I want words to express my Resentment of; and therefore I will say no more than that I will not upon any Account submit to it.

    I send you hereby a Copy of the Agreement & desire that you will shew it to Mr Taylor and demand of him that he immediately makes up what he has paid to you to two thirds of his annual Payment & let him know that I shall consider any Delay in this as a Refusal. You must also go to Mr Pemberton and demand of him an Account of what he has received from the other Deputies, and the Payment of two thirds of what has accrued for the last year from Octr 1769 to Octr 1770, & one half of what has accrued before Octr 1769. If he refuses, advise with the Governor, who will probably set Mr Pemberton right. If that can’t be done, you must withold making any Payments to him till he settles this Account according to this Agreement. If he threatens you with Law, you must engage Mr Auchmuty & Mr Sewell who will advise the best Method of defending yourself or suing him, if the Business can’t be brought into one Action by way of a Set off. If you are drove into Law you must take out an Administration to your Brother, if it is not done allready, in trust for me. You will have all proper Advice from Mr Auchmuty & Mr Sewell as to Law & from the Governor in general. In short be well advised of what you do, & act with Spirit.

    I am &c

    John Bernard Esqr

    L, LbC      BP, 8: 164–165.