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![handle is hein.slavery/ssactsengr0236 and id is 1 raw text is: 4 BING. 119.. BROWN V. STAPYLETON 713
and may recover the debts due to each, so that every count in the declaration may be
supported. There is no ground for the objection.
GASELEE J. Upon the objection as to misjoinder, judgment must be for the
Plaintiffs; and though there may be some degree of uncertainty in the fifth count, it
is not such as renders the count bad.
Judgment for Plaintiffs.
[119] BROWN v. THE HONOURABLE GRANVILL ANSON CHETWYND STAPYLETON
AND OTHERS. May 8, 1827.
[S. C. 12 Moore, 334; 5 L. J. C. P. (0. S.) 121. Referred to, Denoon v. Home and
Colonial Assuranci Company, 1872, L. R. 7 C. P. 348.]
Provisions do not contribute to general average, even where the cargo of the ship
consists only of passengers.
This was an action of assumpsit brought by the Plaintiff, as owner of a ship called
the Princess Royal, against the Defendants, three of the commissioners for victualling
his Majesty's navy, to recover a contribution towards a general average, due in respect
of part of the furniture of the said ship having been lost and damaged for the
preservation of the ship and cargo, whilst on a voyage with convicts and also with
provisions and stores put on board for the use of those convicts on the voyage, by the
Defendants.
The Defendants pleaded the general issue, upon which issue was joined; and at
the trial of the cause before Best C. J. and a common jury at Guildhall, at the sittings
after Hilary term 1826, a verdict was found for the Plaintiff, damages 1501., subject
to the opinion of the Court on the following case :
On the 17th June 1822 the said ship, the Princess Royal, belonging to the
plaintiff, was taken up on charter by the commissioners of his Majesty's navy, for the
conveyance of convicts, with their necessary attendants to New South Wales.
The Defendants were then, and are now, three of the commissioners for victualling
his Majesty's navy, and as such eommissionerif they caused to be shipped on board
the said vessel, for the subsistence, use, and consumption, during the voyage of such
convicts and their necessary attendants, provisions and victualling stores of the value
of 13531., or thereabouts.
[120] On the 13th September 1822, the said ship received on board, for a passage
to New South Wales, the following number of persons, for whose passage the said
ship was taken up, viz. 156 convicts, four women, eight children, one surgeon, and
thirty-five soldiers. On the 14th October 1822, while the ship was in the Downs in
the prosecution of her voyage, a general average loss was sustained, amounting in the
whole to the sum of 2801. 5s.
The ship was then at the value of 45001., the freight at the value of 18661. 14s. 10d.;
and so much of the provisions and victualling stores shipped by the Defendants as
remained then unconsumed were of the value of 11621. 9s. 9d.
If the Defendants were, in respect of such provisions and victualling stores, liable
by law to contribute to a general average loss, their proportion on the provisions and
victualling stores, then unconsumed, amounted to 411. 13s. 9d., which was the sum
sought to be recovered in this action.
The question for the opinion of the Court was, Whether the Plaintiff was entitled
to recover ? If the Court were of opinion that the Plaintiff was so entitled, the verdict
was to stand ; but if of a contrary opinion, a nonsuit was to be entered.
Taddy Serjt. for the Plaintiff.
Generally speaking, contribution to a general average cannot be demanded in
respect of the apparel or food of the passengers (a). But contribution must always
be made in respect of the cargo or merces (b). All who have valuable property on
board; all who are interested in the iargo, must contribute to that which has been
sacrificed to all. But in a ship hired to carry convicts, the convicts are themselves the
cargo, and not like pas-[121]-sengers in ordinary cases, a mere accidental addition
to the cargo. The victualling board were interested in the stores necessary for the
(a) Maghens, 62, 63. (b) Park on Ins. 217. Roccus, 62.
C. P. viii.-23*](ViewImageLocal?handle=hein.slavery/ssactsengr0236&div=1&collection=&method=preview&ext=.png&size=3)