2 Starkie, 60, Samuel v. Darch. 4 Espinasse, 262, Thomas v. Day. Peake, 114, vers. sued in trover, he would have recovered, because the wrongful delivery was of itself a conversion, which is the gist of that action. The liabilities of warehousemen are so nearly connected with this subject, that it may not be amiss to mention one or two cases respecting them before we proceed. Goods were sent to be taken care of in the defendant's warehouse; it appeared, that the crane which was employed to elevate the packages into the wareroom broke, and seventy-nine pieces of linen were spoiled, from having been drenched in the wet street. It was contended, that the liability of the carman who brought the goods had not ceased, but Lord Ellenborough was of a different opinion: "When the warehouseman took "them into his own hands, the moment the warehouseman applied his tackle to them, from that moment "the carman's liability ceased." When the goods are safely bestowed in the warehouse, a reasonable and common care of them will satisfy the trust which the law casts on the warehouseman. He is not an insurer, liable for losses, nearly of every kind, like the carrier. So that where the rats got at some ginseng, whereby it was spoiled, and the defendant had used fair diligence in protecting it from vermin, by shutting the lid of the box every night where it was kept; by procuring cats, &c. it was held, that he should not be made answerable for a damage which he could not prevent. East India Company. The East India Company adopt a peculiar clause in their charter-parties of affreightment, which is deserving of attention. It is this: "As touching the freight to be paid or allowed by this Company, it is agreed, and "the Company covenant with the said part-owners, that "this Company shall and will, in case and upon condi"tion that the ship performs her voyage, and arrives at "London in safety, and the said part-owners and masters "do perform the covenants on their part, and not other"wise, well and truly pay and allow the freight herein " mentioned. 66 66 "It is hereby agreed, that in case the ship does not "arrive in safety in the river Thames, and there make "a right delivery of the whole and entire cargo and lading on board the said ship as aforesaid, the Company shall not be liable to pay any of the sums of money hereinbefore agreed to be paid for freight and "demurrage, nor subject to any demands of the said part-owners or master, on account of the said ship's earnings in freight, voyages for the Company, or on "account of any other employment, any other law, practice, or custom notwithstanding." 66 66 66 Abbott, p. 202, Tod v. E. I. A ship, chartered by the Company, on her return from India, met with a violent storm off Margate, by which she was stranded and sunk; a great part of the cargo, being saltpetre, was lost, but the remainder, chiefly pepper, was rendered marketable by the Company at a great expence; upon this, a special jury of merchants, Blackstone, whose opinion the Court of King's Bench confirmed, Rep. 291, Hume held, that freight was to be paid for all the goods deli- pany. vered, and demurrage as specified by the charter-party. If goods (the homeward-bound cargo,) are lost from any other cause than that of necessity, there is a clause which stipulates for the payment of 301. on every 100l. on the prime cost of such goods. So, if the homeward-bound cargo, or any part, is injured by the wet, &c. or in any way ship damaged (g), the Company may refuse the goods, and the part-owners and master must take them, with charges, customs and (g) That is, damage from negligence, insufficiency, or bad stowage in the ship. Freighters are not answerable for damage or loss arising from the act of God. Douglas, 272, Hotham v. East India Company. See Sir William v. E. I. Com puties, at the invoice price; and in such case the Company are not to pay any freight for such goods, unless for damaged pepper, which the part-owners and master are to allow the Company for, at the current price of sound pepper in London, and the Company are to pay the freight and charges on such pepper, as if it were not damnified. It was decided, in the case of the ship stranded off Margate, as above mentioned, that the shipowners were not liable to pay for the goods damaged on that occasion; that they were not answerable for the pepper, for it could never have been their intention to insure against the perils of the seas; and that the contract being entire, it could never have been intended that the owners should be protected from the lesser loss, and remain answerable for the greater. The Company agreed to allow 200l. per month for provisions while the ship remained in India or China, to be computed from her delivery of' the Company's dispatches (if any) at the ship's first consigned port, and to continue until the ship should be dispatched from her last port in India or China, to return to Europe. It was also agreed, that the Company, or their agents, should pay to the plaintiffs in England 147. for each passenger ordered on board the said ship by any of the Company's agents, from any of their settlements, &c. in the East Indies. In construing the charter-party wherein these clauses were inserted, the Court held, that the words "last port" meant last consigned port; so that where the ship, having left Canton, her last consigned port, was obliged to put into Bombay for repairs from stress of weather, the 2007. per month were considered not to be payable during the interval which elapsed between the ship's leaving Canton, and her stay at Bombay. Nevertheless, as the Company detained her at Bombay for convoy for two months after she was ready to sail, they were compelled to pay the 200l. a month for the latter period. According to the conditions of the East India Com- Sales of E. I. pany's sales, "if any buyer shall not make good the Company. "remainder of the purchase-money on the goods which "shall be bought by him on or before the day limited "for payment thereof, the deposits which have been paid upon the same shall be forfeited to the Company, "and such buyer shall be rendered incapable of buying "again at any future sale, until he shall have given satis faction to the Court of Directors." The plaintiff, after one of these sales, had neglected to make good the remainder of the purchase-money on the goods which he had bought, but having had time allowed him, he paid it within the prescribed season with interest. The Company refused at a subsequent sal e to declare him a purchaser, although he was the best bidder, and he, thereupon, brought his action. The defence was, that he had neglected to give the Company satisfaction. But by Lord Alvanly, Ch. J.: "The East India Company had "no right to exclude this man from bidding till he had given what they might think a satisfaction, but only till " he should make sufficient reparation for the injury they "had sustained by the breach of his agreement with "them to pay certain sums of money on certain given 66 66 days. If they had thought fit to impose this penalty, they should have brought an action against him for "not fulfilling his contract; and if he did not pay those damages which a jury might give, I should think they "would have authority to exclude him, because that 3 Bosanquet & "would not be a partial regulation, but would affect all Puller, 55, Eagleton v. E. I. "mankind alike, and every man who did not comply Company. "would be excluded." A sale of the command of a ship in the East India Company's service, without their knowledge, is illegal, and such a contract cannot be made the subject of an action, because it is against the principles of public policy, which requires, that no money consideration 8 Term. Rep. 89, Blachford v. 1 Rose 89, ex should be given for the appointment to an office in which the public are interested. Of Partners. A supposed general participation in profit and loss is a fair definition of partnership. If losses arise, the person who takes a moiety of the profits at other times bears his proportion of the misadventure, so that an individual who permits himself to be allied to a firm, for the purpose of sharing their advantages, must be prepared for any reverse which may occasion a demand upon him in a day of calamity. Thus, if one stipulate for an interest in the parte Rowland- profits of a business, as a reward for his labour, he becomes responsible to third persons as a partner, and no private arrangement can cancel his liability. But here lies the distinction: " If a trader agrees to pay 66 another person in the concern a sum of money, even in "proportion to the profits, equal to a certain share, that " will not make him a partner; but if he has a specific "interest in the profits themselves, as profits, he is a partner." son. 17 Vesey, jun. 404, by Lord Eldon. 5 Taunton, 74, Meyer v. Sharpe ; 2 Barnewall & 66 An individual, therefore, who was paid by a proportion of the profits of an adventure, was considered not to be a partner in the goods, the produce of the advenSmith v. Watson, ture. And there are many other authorities to the same effect; but if a proportion of the losses is to be borne Cresswell, 401, by the agent, he may be rendered liable as a partner to third persons. But where a firm, directed to purchase cotton, used these expressions: "We shall be happy to hold one"third interest therein, charging no commission;" and in a subsequent correspondence the whole transaction Reid v. Hollin was referred to as a joint account between the vendors and the firm so directed to buy, it was held to be a partnership. 4 Barnewall & Cresswell, 867, shead. A partnership is commonly ratified by deed, but this |
