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I BROWN.
EAST INDIA CO. v. TOD [1788]

against the husbands of the Lady-members, or against the minors become adult, for the expences of the Ladies Club. If the respondent had been so absurd as to make such an engagement, he must have abided by the consequences: but he stipulated for, he received, and he relied upon the written orders of the appellants, which could have no object, but to prevent the difficulty which was now attempted to be thrown on the respondent. And that the nature of the reimbursement to be made to the re-[405]-spondent was expressed in the instruments under which he acted, and the decree provided for that reimbursement in the terms of those instruments.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree therein complained of, affirmed. (MS. Jour. sub anno 1787. p. 238.)


Case 51.—The East India Company,—Plaintiffs; James Tod,—Defendant [20th May 1788].

[Mew's Dig. xiii. 249.]

[In a charter party between the Company and the owners of a ship taken into their service, was the following clause: "But nevertheless the said part-owners shall not be charged with any sum of money in respect of goods damaged on board the said ship, either in her outward or homeward-bound voyage, but such as shall, by the condition and appearance of the package thereof, or by some other reasonable proof, appear to be ship damage." Part of the homeward-bound cargo was damaged in a storm. Held, that this was not ship damage, within the meaning of the clause, which is imputable only to such damage as happens by insufficiency of the ship, or the neglect of those who have the charge of her.]

On the 20th of January 1780, a charter party of affreightment was entered into between the defendant in error as captain, and George Wilson and Conrad Harkson, both since deceased, as part-owners of the ship Rochford of the one part, and the plaintiffs in error of the other part, for the hire of the said ship on a voyage to the East-Indies and back again. In this charter party there are the following clauses, on which the question in this cause arose, viz.

It is covenanted and agreed by and between the said parties, that if any of the goods or merchandises that shall be laden aboard the said ship in England, or at any other place in her outward-bound voyage, shall be lost or not delivered to the Company, their presidents, factors, agents, or servants, at the ship's consigned port or ports abroad, in such case the said part-owners and master shall pay, or at the election of the said Company, allow to the said Company out of the freight and demurrage to grow due by virtue of these presents, the full prime cost of such goods so lost and undelivered, together with £30 for every £100 on such prime cost. Except, nevertheless, that no such payment shall be made, if there shall happen to be an utter and inevitable loss of the said ship and cargo; nor shall any other payment be made for such goods as shall necessarily perish, or be cast into the sea in the outward-bound voyage, for the preservation of the ship and cargo, than by an average to be borne by the said ship, freight, demurrage, and cargo. And it is further agreed, that if it shall happen that any of the said goods, laden on board the said ship, shall, within thirty days after the delivery thereof, be by the said Company's servants or any of them declared to the master for the time being, to be wet or da-[406]-maged, and accordingly found so to be, that then the said part-owners and master shall pay, at such consigned ports, the difference in value between such wet or damaged goods, and such as are found, which difference shall be adjusted by and between the master of the said ship for the time being, and the said Company's presidents or factors at such consigned ports. And in default of such adjustment and payment, shall pay, or as aforesaid, allow to the said Company, the prime cost thereof. And moreover the damaged goods shall be and remain to the use of the said Company. And if any of the homeward-bound cargo

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