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![handle is hein.slavery/ssactsengr0015 and id is 1 raw text is: precedents clashed, and we were bound to overset one class of cases or another, I
should be disposed to overturn those that do not coincide with the reason [656] and
justice of the case. Perhaps all the cases decided may stand on their own ground:
but this precise point having been adjudged in the case of Hawes v. Saunders, I am
inclined to abide by that determination.
Ashhurst J. Where an executor fails in proving his case at Nisi Prius, he is
excused paying costs, because he is not supposed to know with certainty the situation
of his testator : but here the administratrix herself made a mistake, and therefore she
ought to pay the costs of it.
Grose J. The reason why executors are excused paying the costs of a nonsuit
is because of the uncertainty of the testator's demand : but in this case the plaintiff
is in fault on her own shewing; she omitted to state in her declaration what by the
law of the land she was bound to state.
Lawrence J. The case of Hawes v. Saunders was decided after consideration; for
it appears that the rule was enlarged the first time it came before the Court, and it
was afterwards held that the executrix was liable to pay the costs of a non-pros.
And that decision being founded on the reason and justice of the case, it ought to
govern the present case.
Rule discharged.
TATHAM against HODGSON. Saturday, April 30th, 1796. Upon an insurance on
slaves against perils of the sea, their death by failure of sufficient and suitable
provision occasioned by extraordinary delay in the voyage from bad weather is
not a loss within the policy, but a loss by natural death which cannot be insured
against since the 30 Geo. 3, c. 33, s. 8, and 34 G. 3, c. 80.
This was an action upon a policy on the ship and goods at and from Liverpool to
the coast of Africa, during her stay and trade there, and from thence to her port and
ports of discharge sale and final destination in the West Indies and America, &c.
The cargo consisted chiefly of slaves; and the plaintiff declared that the ship with
her cargo, after her departure from the coast of Africa upon the voyage insured, and
before her arrival at any of her ports of destination, &c. was by tempestuous weather
and through the mere perils and dangers of the sea greatly retarded and delayed
in her said voyage, by reason whereof and from a failure and want of proper and
sufficient food and sustenance for the said slaves, occasioned by the said ship being
in her said voyage so delayed as aforesaid, divers of the said slaves became distempered
and died; and that afterwards in the course of the voyage the ship was lost, with
the residue of the slaves and the rest of the cargo. It appeared in evidence that the
voyage was from the river Cameroon on the coast of Africa to Grenada; that while
she was at Bilbay, on the coast, there was a ground swell, by [657] reason of which
the ship struck several times on the ground, and was nearly wrecked; from thence-
forth she became leaky, her rudder was rendered almost useless, and the vessel was
unmanageable. The cargo of slaves was reduced in the course of the voyage from
168 to 40 by hardships in the delay of the voyage, by reason of which the slaves were
obliged to be fed with Indian corn, which was an improper food for them. All
possible care had been taken to provision the ship as well with European provisions
as with such as the coast furnished for the use of the slaves. But instead of the
ordinary voyage, which is from six to nine weeks, they did not arrive at Barbadoes
till after a voyage of six months and eight days. And the captain put into Barbadoes
instead of going on to Grenada, which would have been a sail of 36 hours longer, by
the advice of his officers and crew, for the preservation of the surviving slaves, who
were in a perilous condition. Mr. J. Heath, before whom this cause was tried at
the last assizes at Lancaster, was of opinion that the plaintiff was barred by the late
statutes (a) from recovering the value of the slaves, they having died natural deaths ;
but he reserved that point for the consideration of this Court. With respect to the
ship and the rest of the cargo, the defendant's counsel made two points ; 1st, that the
deviation to Barbadoes was not necessary; 2dly, that the ship might have been
repaired at Barbadoes and proceeded afterwards on her voyage to Grenada. But the
jury found a verdict for the plaintiff on these points to the satisfaction of the Judge;
(a) 30 Geo. 3, c. 33, s. 8, and 34.Geo. 3, c. 80.
756
TATHAM V. HODGSON
6 T. R. 656.](ViewImageLocal?handle=hein.slavery/ssactsengr0015&div=1&collection=&method=preview&ext=.png&size=3)