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![handle is hein.slavery/ssactsengr1042 and id is 1 raw text is: THE KING V. TOTTINGTON LOWER END
the subject of property. This, therefore, was a throwing overboard of goods, and
of part to save the residue. The question is, first, whether any necessity existed
for that act. The voyage was eighteen weeks instead of six, and that in conse-
quence of contrary winds and calms. It was impossible to regain the island of
Jamaica in less than three weeks; but it is said that [234] other islands might have
been reached. This is said from the maps, and is contradicted by the evidence. It
is also said that a supply of water might have been obtained at Tobago; but at that
place there was sufficient for the voyage to Jamaica if the subsequent mistake had not
occurred. With regard to that mistake, it appeared that the currents were stronger
than usual. The apprehension of necessity under which the first negroes were thrown
overboard was justified by the result. The crew themselves suffered so severely, that
seven out of seventeen died after their arrival at Jamaica. There was no evidence,
as stated on the other side, of any negroes being thrown overboard after the rains.
Nor was it the fact that the slaves were destroyed in order to throw the loss on the
underwriters. Forty or fifty of the negroes were suffered to die, and thirty were
lying dead when the vessel arrived at Jamaica. But another ground has been taken,
and it is said that this is not a loss within the policy. It is stated in the declaration
that the ship was retarded by perils of the seas, and contrary winds and currents, and
other misfortunes, &c. whereby the negroes died for want of sustenance, &c. Every
particular circumstance of this averment need not be proved. In an indictment for
murder it is not necessary to prove each particular circumstance. Here it sufficiently
appears that the loss was primarily caused by the perils of the seas.
Lord Mansfield.-This is a very uncommon case, and deserves a reconsideration.
There is great weight in the objection, that the evidence does not support the state-
ment of the loss made in the declaration. There is no evidence of the ship being foul
and leaky, and that certainly was not the cause of the delay. There is weight, also,
in the circumstance of the throwing overboard of the negroes after the rain (if the fact
be so), for which, upon the evidence, there appears to have been no necessity. There
should, on the ground of reconsideration only, be a new trial, on the payment of costs.
Willes, Justice, of the same opinion.
Buller, Justice.-The cause of the delay, as proved, is not the same as that stated
in the declaration. The argument drawn from the law respecting indictments for
murder does not apply. There the substance of the indictment is proved, though the
instrument with which the crime was effected be different from that laid. It would
be dangerous [235] to suffer the plaintiff to recover on a peril not stated in the
declaration, because it would not appear on the record not to have been within the
policy, and the defendant would have no remedy. Suppose the law clear, that a loss
happening by the negligence of the captain does not discharge the underwriters, yet
upon this declaration the defendant could not raise that point.
Rule absolute on payment of costs (b).
THE KING v. THE INHABITANTS OF TOTTINGTON LOWER END. Saturday,
24th May, 1783.
(Reported, Caldecott, 284.)
PALMER v. EDWARDS. Saturday, 24th May, 1783.
(Reported, ante, vol. i. p. 187, n.)
(b) It was probably this case which led to the passing of the statutes 30 G. 3,
c. 33, s. 8, and 34 G. 3, c. 80, s. 10, prohibiting the insurance of slaves against any loss
or damage except the perils of the seas, piracy, insurrection, capture, barratry, and
destruction by fire; and providing that no loss or damage shall be recoverable on
account of the mortality of slaves by natural death or ill-treatment, or against loss by
throwing overboard on any account whatsoever. See Tatham v. Hodgson, B. R., E.
36 G. 3, 6 T. R. 656. As to insurance upon animals which have been killed by the
perils of the seas, see Lawrence v. Aberdein, B. R., M. 2 G. 4, 5 B. & A. 107; Gabay
v. Lloyd, B. R., H. 5 & 6 G. 4, 3 B. & C. 793.
630
3 DOUGL. 234.](ViewImageLocal?handle=hein.slavery/ssactsengr1042&div=1&collection=&method=preview&ext=.png&size=3)