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![handle is hein.slavery/ssactsengr0237 and id is 1 raw text is: 71.4 HALL V. CHANDLESS 4 BING. 122.
support of the convicts, just as other merchants are interested in a general cargo. The
provisions and convicts were in effect the merces of this voyage, and, therefore,
distinguishable from the case where the provisions are for a few passengers, and of
small comparative value. The commissioners have received a benefit to the extent of
the value of the stores, and to that extent they ought to contribute. Whatever is
capable of insurance is capable of being brought into general average ; and these stores
were clearly capable of insurance. Upon the principles of contribution referred to by
Gibbs C. J. in Taylor v. Curtis (2 Marsh. 309), omnium contributione sarciatur quod
pro omnibus datum est, it would be incompatible with justice that the commissioners
should not contribute.
BEST C. J. It is not necessary for us to consider the policy of the law which has
been established on this subject; it- seems, however, to be perfectly consistent with
justice. The law is of foreign origin ; but the principle of it has been long known and
acted on in this country. It is not every object of value which has been held liable to
a contribution for average, but only such stores as are termed merces. Merces has never
been held to extend to provisions, but includes only the cargo put on board for the purposes
of commerce ; and the practice shews that this has been the understanding of all times.
Maghens, Molloy, Beawes, Stevens, and other writers, all expound the word merces in
this way ; all'in terms exclude provisions. They concur in saying, that things of light
weight, but of considerable value, must contribute, if they belong to the cargo, but not
if they belong [122] to the passengers. Provisions are laid in for the passengers, and
must be esteemed to belong to them. Further than this, the ship is always brought
into average according to her reduced value at the end of the voyage, when the provisions
have mostly been consumed. As to the argument, that the convicts must be esteemed
the merces upon this voyage, and so the stores laid in for them be chargeable as parcel
of the merces, it is clear, that whether cargo or not, they cannot be brought into con-
tribution, because human life is not the subject of average. If, therefore, the convicts
themselves cannot be brought into contribution, much less can the provisions, which
are merely accidental to their passage.
PARK J. I have been astonished how a case could have been granted in this
instance. No question has ever before been raised upon the point. Provisions have
always been held an exception from the general rule respecting contribution. The
rule is, that all merchandise put on board for the purpose of traffic is liable to be
brought into contribution, and in merchandise is included all property of great value,
unless attached to the persons of the passengers; but property so attached does not
contribute ; and all the writers on the subject go on to say, that the owners are not
liable to contribute for the victuals and ammunition of the ship. Convicts are not to
be considered as cargo, because, though average has been allowed for slaves thrown
overboard, the authorities are clear, that there can be no estimation of the life of a
freeman (a).
The rest of the Court concurred.
Judgment of nonsuit.
[123] HALL V. CHANDLESS. May 8, 1827.
[S. C. 12 Moore, 316.]
Lease of lands by A. to B., at the request of C., D., and E., out of which, B. was to
grant underleases at the direction of C., D., and E. (the object of which under-
leases was to secure a ground-rent to A. and C.), and subject to such underleases,
was to stand possessed of the lease in trust for D. and E., who were parties to the
original lease :-After C., D., and E. had executed that lease, and- before A. or B.
had executed it, the lease was altered with the consent and privity of C. only, by
an erasure, which 'excluded a certain portion of land inserted by mistake, but in
which D. and E. had no interest. A. and B. then executed the lease: Held, that
this alteration did not render it invalid.
The following case was sent by the'Vice-Chancellor for the opinion of the Court
of Common Pleas..
(a) Abbott on Shipping. Molloy.](ViewImageLocal?handle=hein.slavery/ssactsengr0237&div=1&collection=&method=preview&ext=.png&size=3)