Page:The English Reports v1 1900.pdf/671

allowed the Company's covenant servants, together with the freight thereof, amounted in the whole to the sum of £379 19s. after deducting the produce of such last mentioned goods on the sale thereof; and also the further sum of £557 16s. 10d. being the amount of lawful interest, computed upon the said sum of £3796 19s. amounting together to the sum of £4354 15s. 10d. and which last mentioned sum of money the said counsel claimed before the said Justice, to be allowed to them out of the said sum of £4732 5s. 1d. so as aforesaid claimed to be due from the said United Company to the said James Tod. And the said counsel for the said United Company did further give in evidence, that before the commencement of this suit, the said United Company had paid to the said James Tod, all the sums of money so claimed to be due to him as aforesaid, according to the form and effect of the said charter party, and the covenants of the said United Company in that behalf made, save and except the said sum of £4354 15s. 10d. so claimed and insisted on, to be allowed to the said United Company, as above mentioned; and save and except the sum of £377 9s. 3d. which two last mentioned sums constitute the said sum of £4732 5s. 1d. for which the counsel for the said James Tod claimed a verdict as aforesaid. And thereupon the said counsel for the said United Company did then and there insist before the said Justice, that the said several sums of money so claimed and insisted on by them as aforesaid, ought, according to the form and effect of the said charter party of affreightment, to be allowed to the said United Company, by the said James Tod, out of the said sums of money so due to him for freight, demurrage, interest, and charges, as aforesaid, and ought to bar the said James Tod of his action aforesaid, in respect to so much of the said demand. Whereupon the said counsel, learned in the law, on the part and behalf of the said James Tod, did then and there give in evidence, that the said goods, so as above alledged to be wet and damaged, were wet and damaged by storms, and the violence of the winds and [410] seas, and not from any defect or insufficiency of the said ship, and therefore did then and there insist before the Justice aforesaid, that the said several sums of money ought not, nor ought any of them, according to the form and effect of the said charter party of affreightment, to be allowed to the said United Company, out of the freight, demurrage, interest, and charges aforesaid; and that the said evidence, so given as aforesaid by the said counsel, for the said United Company, was not sufficient to bar the said James Tod of his aforesaid action, as to the said sum of £3796 19s. so claimed, to be allowed to the said United Company. And thereupon the counsel for the said United Company prayed the said Justice, that he would declare to the jury aforesaid, that the evidence so given as aforesaid by the said counsel for the said United Company, was sufficient to bar the said James Tod of his aforesaid action, as to the aforesaid sum of £3796 10s. so by them claimed, to be allowed to the said United Company: Yet the said Justice then and there did declare and deliver his opinion to the jury aforesaid, that if they the said jury should be of opinion, that the said damage to the said goods, so as above mentioned wet and damaged, had happened to the said goods from or by storms, then that such damage so happening was not ship damage within the meaning of the said charter party, and consequently, that the several sums of money so claimed and insisted on to be allowed to the said United Company as aforesaid, ought not on the whole case to be allowed to the said United Company, out of the said freight, demurrage, interest, and charges aforesaid, according to the form and effect of the said charter party of affreightment, nor were sufficient to bar the said James Tod of his said action against them the said United Company, as to so much of his said demand; and thereupon with that direction left the same to the said jury. And the jury aforesaid, then and there under that direction, gave their verdict for the said James Tod, with £4732 5s. 1d. damages, and 40s. costs, being the whole amount of the said freight and demurrage, charges and interest, claimed by the said James Tod as aforesaid. And thereupon the said counsel for the said United Company, did then and there on behalf of the said United Company, except to the said opinion of the said Justice, and insisted on the said several matters and proofs by them alledged and proved, as aforesaid and insisted on, to be allowed to the said United Company, to be an absolute bar to the said action of the said James Tod, as to the said sum of £3796 19s. parcel of the said demand as aforesaid, according to the form and effect of the said charter party of affreightment.