AGREEMENTS.

or so much thereof as she shall be able reasonably to carry, over and Charter-party. above her tackle, apparel, provisions, and furniture; and the said vessel being so loaded with the said goods, the said master shall with all convenient speed proceed therewith to the port of

Carriage and

delivery thereof.

Exemptions.

Freight and demurrage.

Penalty.

Charterparty.

or as near thereunto as she can safely get, and there make right and
true delivery of the same to the correspondents, agents, or assigns
of the said merchant (the acts of God or the King's enemies, deten-
tions and restraints of kings, princes, rulers and republics, fire, the
damage and accident of the seas, rivers, and navigation, and all and
every other unavoidable dangers and accidents always excepted (1)),
on being paid for freight the sum of £
; the freight to be paid

on unloading and right delivery of the cargo; the said merchant to
be allowed
lay or running days (if the ship be not sooner
dispatched) for loading the said cargo at
unloading the same at

and for

and to detain the ship days on demurrage over and above her lay days, at the rate of per day, and pilotage and port charges to be paid whether the whole or part cargo delivered (2).

The penalty for non-performance of this agreement on either side to be L

A. B. (Master or Owner).
C. D. (Merchant).

(1) Although agents are not answerable for unavoidable accidents, unless under a general covenant for performance, yet it is proper in all cases to guard against their liability, lest any clause in the contract between the parties should be construed to be a guarantee contrary to the intent of the parties, the exception therefore is always inserted in charter-parties, and protects the party from the effects of storms, tempests, contrary winds, the superior force of an enemy, &c., but so far only as the loss sustained could not have been prevented by due care and proper conduct on the part of the master and his crew. 1 Dow, 336. 12 East 381. See 3 Chitty 432. "AVERAGE."

(2) Where an agreement is entered into in a charter party to pay certain pilotage and port charges for an entire voyage, the whole of such charges must be paid, although a part only of the cargo be delivered, no appointment being admitted. Christy v Rowe. 1 Taunt. 300.

No. XX.

*An Agreement by a Merchant or Tradesman with a Person as a Managing Clerk.

AGREEMENTS.

Clerk.

day of

,

ARTICLES of agreement indented, made, and concluded upon this in the year 18 , BETWEEN the (principal) of, &c. of the one part, and the (clerk) of, &c. of the other part: Whereas the said (principal) hath agreed with the said (clerk) to take him the said (clerk) as his clerk, for the managing, superintending, and conducting the said trade or business of in which the said (principal) engages at the time, and on the terms hereafter mentioned. NOW THESE PRESENTS WITNESS, that in consideration of the covenants hereafter contained on the part of the said (principal), he the said (clerk), for himself, his heirs, executors, and administrators, doth hereby covenant, promise, and agree with and to the Agreement to said (principal), his executors, administrators, and assigns, in the manner following; that is to say, that he the said (clerk) shall and will henceforth, for and during the term of years, to be com

WITNESS.

become clerk.

&c.

puted from the day of the date of these presents, become and continue the clerk of him the said (principal) in the aforesaid trade or business of ; AND shall and will give his whole time and Will be faithful, attention to the said trade or business, and in the managing, conducting, superintending, and improving the same, to the utmost of his power and ability; AND also shall and will do and perform all such services, acts, matters, and things as he the said (principal) shall from time to time order, direct, or appoint, and shall not, nor will at any time or times hereafter, without the consent in writing of the said (principal), his executors or administrators, divulge or make known any of the trusts, secrets, accounts, or dealings of or relating to the said trade or business of him the said (principal): AND also, that he the said (clerk) shall and will be just and faithful to him the said (principal) in all his business, dealings, and transactions what to keep and rensoever, and shall and will give and render to the said (principal) a just and true account of the same at all times when the same shall be required of him: AND also provide and keep such and so many books

der accounts.

AGREEMENTS.

Clerk.

Salary.

And allowance in proportion to proceeds.

Proviso for determining the agreement.

Gross proceeds.

of account as shall be necessary, wherein he shall fairly write or cause
to be written, all monies received and paid, and all goods which shall
be bought or received in, or sold or delivered out upon credit or
otherwise, and the rates and prices at which the same shall be bought
or received in, or sold or delivered out, and all other matters, circum-
stances, and things necessary to manifest the state and condition of
the said trade, which said book or books of account shall always be
kept in some convenient place on the premises where the said trade shall
from time to time be carried on, and be at all times open to the inspec-
tion of the said (principal). AND these presents further witness, that in
consideration of the covenants hereinafter contained on the part of the
said (clerk), he the said (principal), for himself, his heirs, executors,
and adminstrators, doth hereby covenant, promise, and agree with and
to the said (clerk), his executors and administrators, that he the said
(principal) shall and will yearly and every year during the said term,
the said (clerk) well and truly performing, fulfilling, and keeping all and
singular the covenants and agreements herein-before contained on his
part, well and truly pay or cause to be paid unto the said (clerk) by
half-yearly payments, on the day of
and the day
every year, by equal portions, the clear yearly
of lawful and current English money, without any

of

sum of £

in

day of

deduction whatsoever, the first half-yearly payment thereof to be
made on the
next ensuing the date of these
presents; and also shall and will yearly and every year, on the
day of
well and truly pay or cause to be paid unto
the said (clerk) over and above the said yearly sum of £
much money as will amount or be equivalent to one fourth part of
the gross proceeds of or to arise from the said trade or business
without regard to interest upon capital, rent, taxes, repairs, wages,
or other expenses or out-goings whatsoever, or any bad or doubtful
debts (1). AND also a proportionable part of the said yearly pay-
ments from the last of such respective days of payment next prece-
ding the decease of the party so dying, up to the day or time of his
decease. Provided always, and it is hereby agreed and declared be-
tween and by the parties hereto, that in case of the decease of either

(1) If any remuneration is given to a clerk beyond his salary, and in proportion to the increase of the trade, which is frequently done as a stimulant to his exertions, it should be in respect of the gross, and not the net proceeds; for it has been conceived that his being liable to losses or outgoings (which in the latter case he would in effect be), would make him a co-partner. See Dry v. Boswell, 1 Campb. 330. and see also 17 Ves. 404.

of them the said parties before the expiration of the said term of years, or in case the said (principal) shall be desirous at any time during the term aforesaid, to determine these presents, it shall and may be lawful for him so to do, on giving to the said (clerk), calendar months' notice thereof in writing, and paying to him the said (clerk), the sum of £ of lawful English money, and also a proportionable part of the said yearly payment herein-before agreed to be paid to him as aforesaid, up to the time of the expiration of the said notice, and then and thereafter these presents and every thing herein contained shall cease, determine, and be absolutely void, but without prejudice to any right of action, claim, or demand in or by either of them the said parties for or by reason of any previous breach or non-performance by the other of the said parties of any of the covenants or agreements herein contained. IN WITNESS, &c.

AGREEMENTS.

Clerk.

AGREEMENTS.

Clerk.

WITNESS.

No. XXI.

*An Agreement between a Merchant, or Tradesman, and a Clerk as Book-keeper and Accountant.

ARTICLES of agreement, indented, made, and concluded, this day of in the year of our Lord 18 BETWEEN (the principal), of, &c. merchant, of the one part, and (clerk), of, &c. of the other part whereas the said (principal) has engaged with the said (clerk), to take him as a clerk or book-keeper in his trade or business of NOW THESE PRESENTS WITNESS, that the said (clerk), for the consideration hereinafter mentioned, doth hereby, for himself, his executors, and administrators, covenant, promise, and agree to and with the said (principal), his executors and administrators, that he the said (clerk), shall and will, during the term of years, to commence from the day of the date hereof, reside and continue with the said (principal), and diligently and faithfully serve him as clerk and book-keeper of him the said (principal,) and in such other his lawful employment, business, and affairs, and shall from time to time, and at all times, be faithful to and observe, perform, and fulfil the lawful and reasonable commands and directions of the said (principal), without disclosing the same, or the secrets of his employment, business, or dealings, to any person or persons whatsoever. AND the said (clerk), shall and will, from time to time, upon request, make and give unto the said (principal), his executors and administrators, a full, true, just, and perfect account and reckoning in writing of and for all money which he shall receive in or pay out, and of all goods and commodities which he shall at any time receive in or deliver out, upon the account and for the use of the said (principal), or by his order or direction; and And be faithful shall and will well and truly pay, or cause to be paid unto the said (principal), his executors or administrators, all such sum and sums of money, as shall appear to be due upon the foot of every such AND also that he the said (clerk), shall not nor will, at any time or times during the said term, trust or deliver upon credit, any of the monies, goods, wares, and merchandizes of the said (principal), or any of his correspondents, to any person or persons whatsoever, without the special license and consent of him the said (principal). AND the said (principal), doth for himself, his

Clerk will keep

accounts.

Principal will pay salary.

account or accounts.