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had and received. The like sum on an account stated. And the like sum for goods lost, and not delivered in the outward-bound voyage.

And also in the further sum of £45,000 being the amount, as well of the prime cost, as of £30 for every £100 upon the prime cost of divers other goods, part of the homeward-bound cargo of the said ship, which were lost, and not delivered into the Company's warehouses, at the said ship's arrival in England, no utter or inevitable loss of the said ship and cargo having happened, nor the said goods having necessarily perished, or been cast into the sea for the preservation of the ship and cargo; and which last mentioned sum of money, by virtue of the said charter party, ought to have been paid and allowed by the plaintiff upon the last mentioned account, [408] and yet was due from the plaintiff to the Company by virtue of the said charter party. And also in other £45,000 being the amount of the invoice prices of, and charges upon divers other goods, part of the homeward-bound cargo of the said ship, and which, upon delivery thereof into the said Company's warehouses in England, were before then found to be prejudiced, wet, and damaged, and which goods were refused by the Company; and which said invoice prices and charges by virtue of the said charter party, ought thereupon to have been paid and allowed, and still were due and payable to the said Company, by virtue of the said charter party. Also in the further sum of £45,000 being the amount of certain reasonable allowances and payments due, and of right payable by the plaintiff to the Company, on account of certain losses and damages done, arisen, and happened to divers other goods and merchandises of the Company on board the said ship, in the course of the said outward and homeward voyages, when the plaintiff was master of the said ship, by him the plaintiff agreed to be paid to the Company.

The plaintiff by his replication, denied that he was indebted to the Company in manner and form by them alledged; whereupon issue was joined. And at the sittings after Trinity term 1786, the cause came on to be tried by a special jury, at Guildhall, before Mr. Justice Buller, when it appeared that the balance remaining due for freight, demurrage, charges, and interest, amounted to £4732 5s. 1d. out of which the Company claimed a right to retain £3796 19s. for lost and damaged goods, and £557 16s. 10d. as interest on the last mentioned sum, making together £4354 15s. 10d. So that in all events the plaintiff in the action was confessedly entitled to a verdict for £377 9s. 3d. Whether he was entitled to the whole balance depended on the construction of the clause which exempts the part-owners from paying for any damaged goods, "but such as shall by the condition and appearance of the package thereof, or by some other reasonable proof appear to be ship damage."

The learned Judge who tried the cause having declared it to be his opinion, that a damage by storms was not ship damage, within the meaning of the charter party, the counsel for the defendants excepted to that opinion, and tendered a bill of exception to the Judge, to which he put his seal.

This bill of exception, after the usual introduction, and referring to the record of the pleadings in the action, and setting forth the evidence given on behalf of the plaintiff, with regard to the amount of the freight, demurrage, etc. proceeds as follows, viz.

And thereupon the said counsel for the said James Tod, claimed to be entitled to a verdict for the said James Tod, for the sum of £3613 17s. being the balance or sum remaining unpaid of the freight, demurrage, and charges aforesaid, together with the sum of £1118 8s. 1d. for the interest on the several sums of money payable to him, by virtue of the said charter party of affreightment, for want of due and punctual [409] payment thereof, at the several times appointed for payment thereof, according to the form and effect of the said charter party, amounting together to the sum of £4732 5s. 1d. And thereupon the counsel, learned in the law, for the said United Company, to maintain and prove the said issues on the part of the said Company, gave in evidence, that divers goods and merchandises of them the said United Company of such homeward-bound cargo (not being pepper) when delivered into the Company's warehouses in England, were found to be prejudiced, wet, and damnified; and thereupon the said United Company did refuse the same, and gave due notice of such refusal to the said part-owners, and the said James Tod, the master aforesaid, and that the sums at which the said last mentioned goods were invoiced, with charges, and all customs and duties, to be accounted and reckoned, according to the invoice, valuing the same at the current exchange