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shall be lost or undelivered into the said Company's warehouses at the said ship's arrival in England, (except as above excepted,) the part-owners or master shall pay or allow to the Company as aforesaid, the prime cost of such goods, and £30 for every £100 on such prime cost. But if any of such homeward-bound cargo, when delivered into the Company's warehouses in England, shall be found to be injured by assa-fœtida on board the said ship, or shall be found to be prejudiced, wet or damnified by any occasion or accident whatever, it shall and may be lawful to and for the said United Company to refuse any such goods or merchandises. And in such case, the said part-owners and master shall take and accept of the said goods so prejudiced, wet or damaged, or such part thereof as the said Company, their agents, servants, or assigns, shall refuse, to the use of the said part-owners and master, and pay, or as aforesaid, allow, unto the said United Company for the same, the respective sums which the said goods are invoiced at, with charges and all customs and duties to be accounted and reckoned according to the invoice, valuing the same at the current exchange, allowed the Company's covenant servants that in such case, the said United Company shall pay no charges or freight or otherwise for the said goods so prejudiced, wet or damnified, unless in case of damaged pepper, which the said part-owners and master are to allow the said United Company for, at the current price such pepper, if found, would be sold for here in London; and the said United Company are to pay the freight and charges on such pepper as if the same were not damnified.

And in a subsequent part of the charter party, there is the following clause, viz.

Provided always, and it is hereby expressly agreed, that all damages to be made good, or paid by the said part-owners, or master, in respect of wet or damaged goods, or of goods lost or undelivered, pursuant to these presents, after the same shall be adjusted in manner hereinbefore prescribed, shall not be paid and made good in India, but shall be paid by the said part-owners to the said United Company in London upon demand, upon their producing to the said part-owners a true account of the adjustment in India of such loss or damage, although the said ship shall, or may happen to be lost before her arrival at, or shall not return in safety to the port of London. But nevertheless, the said part-owners shall not be charged with any sum of money in respect of [407] 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, any thing herein contained to the contrary thereof in anywise notwithstanding.

The Rochford proceeded to the East Indies, and on her return from thence in February 1783, she met with a very violent gale of wind, during which the ship strained so much, that the sea water got to some callicoes that were on board, and damaged the same; and also got to some salt-petre that was on board, part of which was dissolved and totally lost, and other part considerably damaged.

When, after the termination of the voyage, and the delivery of the cargo, Captain Tod came to settle with the Company for the freight, demurrage, etc. due to him under the charter party, they insisted on retaining a considerable sum on account of the callicoes so damaged, and the salt-petre so damaged and lost; although it was not disputed but that such damage and loss was wholly occasioned by the violence of the storm, and not by any insufficiency of the ship, or neglect of the master or crew. The defendant in error, who survived the before-mentioned part-owners of the Rochford, was therefore obliged in Easter Term 1786, to commence an action of covenant on the said charter party against the now plaintiffs in error, in the Court of King's Bench, at Westminster.

The declaration set out the charter party at large, assigned breaches on the several covenants contained in it for the payment of freight, demurrage, etc. and laid the damages at £50,000.

The plaintiffs in error (then defendants) pleaded, 1st, That the sums claimed had never become due. 2d, That those sums had been paid. On these pleas issues were joined. They further pleaded, that the plaintiff in the action was indebted to the Company in more money than was due from the Company to the plaintiff, by virtue of the supposed breaches of covenant in the declaration mentioned, that is to say, in £45,000 for goods by the Company, sold and delivered to the plaintiff. The like sum for money paid, laid out, and expended. The like sum for money