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![handle is hein.slavery/ssactsengr0171 and id is 1 raw text is: returned. Now in this case there was a convoy appointed by relays to protect the
trade to England; and [116] the captain of the Ceres having sailed with that
convoy with a bonA fide intention to proceed for England, the proviso for a return of
premium has been complied with. Had the ship been warranted to depart with convoy,
she would have been under the necessity of leaving Oporto with the Speedy cutter
and the King's Fisher; and her so doing would have amounted to a fulfilment
of the warranty. It is true that the policy is made by the broker of the assured ; but
the undertaking to return the premium is the undertaking of the underwriters, and
must therefore be construed most strongly against them.
Rule discharged.
WHITE V. WILSON. Feb. 11th, 1800.
Declaration by a sailor for wages and the average price of a negro slave earned during
a certain voyage from the port of London to the coast of Africa, and from thence
to the West Indies : at the trial it appeared from the articles that the voyage was,
from the port of London, upon an intended voyage to the coast of Africa for slaves,
from thence to the West Indies or America, and afterwards to London in Great
Britain, or to her delivering port in Europe, and that no mention was made in the
articles of the average price of a negro-slave : Held that the variance between the
description of the voyage in the declaration and the articles was fatal, though the
captain put an end to the voyage in the West Indies, and discharged the crew there,
and though the description of the voyage in the declaration was under a scilicet;
held also that the contract for the average price of a negro slave in addition to the
wages was void, not being included in the articles according to the 2 Gee. 2,
c. 36 (a).
Assumpeit. The 1st count of the declaration stated that heretofore, to wit, on,
&c. at, &c. in consideration that the Plaintiff on the retainer and at the special instance
and request of the Defendant, would enter himself and serve as chief mate of and on
board a certain ship called the Swallow, whereof the defendant was master, during
a certain voyage, to wit a certain voyage from the port of London to the coast of
Africa, and from thence to the West Indies which the said ship was then about to
make, during which said voyage certain negro slaves were intended to be purchased
on the coast of Africa, and to be carried and conveyed from thence in the said ship
to the West Indies, and there, to wit, in the West Indies aforesaid, to be sold, he the
Defendant, undertook and promised the Plaintiff to pay him at and after the rate
of 61. by the month, for each and every month during the said voyage, and also so
much money as should be the average price, at and for which one of the said negro
slaves, so to be purchased, carried, conveyed, and sold as aforesaid, should be sold in
the West Indies aforesaid : it then averred that the Plaintiff did enter himself as
chief mate, and that the ship sailed from London, on her said intended voyage, and
in the course thereof proceeded to Africa aforesaid, and from thence to the West
Indies aforesaid, and there, to wit, at the West Indies aforesaid, afterwards, to wit,
on, &c. completed and ended the said voyage, the same having continued a long space
of time, to wit, the space of eleven months ; [117] that the Plaintiff served as chief
mate during the said voyage; that divers negro slaves were purchased on the coast
of Africa, and carried to the West Indies, and there sold, and that the average price
for which they were sold was 531. ; that by reason of these premis.s the Plaintiff
became liable to pay 661. in respect of the monthly wages, and 531. as the average
price of a negro slave. The 2d count stated the Defendant to have promised that
over and above certain sums of money, at and after a certain rate by the month then
and there agreed to be paid by the Defendant to the Plaintiff, in respect of his said
service during the said last-mentioned voyage, he the said Defendant would pay to the
said Plaintiff, so much money as should be the average price, at and for which one of
such negro slaves to be purchased, carried, conveyed, and sold as last aforesaid, should
be sold in the West Indies aforesaid; in all other respects it resembled the 1st count.
There were also counts in indebitatus assumpsit for wages, work and labour, money
paid, had and received and on an account stated. Plea, non assumpsit.
(a) And see Penny v. Porter, 2 East, 2. Miles v. Sheward, 8 East, 7.
1188
WHITE V. WILSON
2 BOB. & PUL. 116.](ViewImageLocal?handle=hein.slavery/ssactsengr0171&div=1&collection=&method=preview&ext=.png&size=3)