tions. A contrary doctrine would be productive of great inconvenience and expense. Although the rights of the parties stood differently before the bankruptcy, yet there is no reason why they should not be recovered in the same action at the suit of the joint assignees. The case would be different if the commissions were separate and not joint. Here, the first four counts of the declaration are upon promises to both the bankrupts; the fifth, upon a promise to one only: but the plaintiffs, as assignees, claim under a joint commission. If, indeed, there were any authority to the contrary, we ought not to yield to it, for it would be clearly inconsistent with justice, and be productive of great increase of litigation and expense to the bankrupt's estate, which we ought as much as possible to diminish. The cases that have been cited do not, however, touch this. Hancock v. Haywood rather supports the principle we now lay down. With respect to the alleged ambiguity in the fifth count -It is said that there is uncertainty as to which commission the plaintiffs' description, " as assignees as aforesaid " refers to. But, although the debt declared on in that count was a separate debt due to one of the bankrupts alone, the plaintiffs, as assignees, were entitled to recover it by virtue of the joint commission. Though suing for the debt of one, it does not follow that they were not suing as assignees under the joint commission, under which they were entitled to recover the separate debts of each as well as their joint debts. Mr. Justice PARK.-I am of the same opinion. I at first thought there had been two commissions; had that been so, I should have felt some doubt. Upon looking attentively through the declaration, however, I do not find that the plaintiffs are any where stated to be assignees under any separate commission. Upon a joint commission against two partners, it is perfectly clear that the assignees 1827. GRAHAM v. MULCASTER. 1827. GRAHAM บ. MULCASTER. may recover their separate as well as their joint debts in the same action. The language of Lord Ellenborough in the case of Scott v. Franklin is decisive of the point. The words" as assignees as aforesaid" can only have reference to the joint commission mentioned in the commencement of the declaration. Mr. Justice BURROUGH.—I am also of opinion that there is no ground for this objection. The plaintiffs are assignees of both the bankrupts, they are also assignees of each, and may sue for and recover debts both separate and joint. Mr. Justice GASELEE.-I also am of opinion that the plaintiffs are entitled to judgment. Assignees under a joint commission against two or more bankrupt partners are clearly entitled to recover in the same action the joint debt of the firm, and separate debts due from the defendant to the several partners. In the fifth count the plaintiffs seek to recover a separate debt due to one of the partners before the bankruptcy of the other; and though there may be some little uncertainty as to what is meant by the words "assignees as aforesaid," yet I do not think it sufficient ground for a demurrer. Judgment for the plaintiffs. Tuesday, May 8th. Provisions and stores for the use of convicts BROWN . The Honorable GRANVILL ANSON CHETWYND THIS was an action of assumpsit, brought by the plaintiff, as owner of a ship called the Princess Royal, against the on board a ship defendants, three of the commissioners for victualling his Majesty's Navy, to recover a contribution towards a geneneral 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. At the trial, before Lord Chief Justice Best and a common jury, at Guildhall, at the Sittings after Hilary Term, 1826, a verdict was found for the plaintiff-damages 150l., 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 commissioners, they caused to be shipped on board the 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 1,3537., or thereabouts. "On the 13th September, 1822, the 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. one hundred and fifty-six 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 4,500l., the freight at the value of 1,8667. 14s. 10d.; and so much of the provisions and victualling stores shipped by the defendants as 1827. BROWN v. STAPYLETON. 1827. BROWN ย. STAPYLETON. remained then unconsumed, were of the value of 1,1627. 9s. 9d. "If the defendants were, in respect of such provisions and victualling stores, liable to contribute to a general average loss, their proportion on the provisions and victualling stores then unconsumed amounted to 417. 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." The case now came on for argument. Mr. Serjeant Taddy, for the plaintiff.-Upon the principle laid down by Lord Chief Justice Gibbs in the case of Taylor v. Curtis (a), all who are interested in the cargo, or are to receive benefit, are liable to contribute to general average-Lege Rhodiá cavetur, ut si levandæ navis gratiá jactus mercium factus est, omnium contributione sarciatur, quod pro omnibus datum est (b)." The defendants in this case have received a benefit to the extent of the value of the provisions at the time the general average loss was sustained. A learned writer on the Law of Insurance (c) cites Roccus to the following effect (d)-" Jactu facto, ob maris tempestatem, pro sublevandá navi, an teneantur assecuratores ad solvendum estimationem rerum jactarum domino ipsarum? Dic eos non teneri, quia pro rebus jactis fit contributio inter omnes merces habentes in illá navi, pro solvendo pretio domino ipsarum: et ideo si assecuratus recuperat pretium rerum jactarum, non potest agere contra assecuratores." All who have valuable property on board are liable to contribute. Generally speaking, provisions and stores for the (a) 2 Marsh. 309; S. C. 6 Taunt. 608. (b) Dig. lib. 14, tit. 2, pl. 1, De Lege Rhodiá de jactu. (c) Park on Ins. 7th edit. 221. (d) De Assecurationibus, note 62. use of the ship are not the subject of general average, they being of small value; but, in the present case, the cargo consisted of human beings-convicts-and the provisions were shipped for their sustenance. The defendants were, therefore, interested in the stores, as other shippers are in the general cargo. The convicts and provisions were the merces of the voyage. All the provisions might not be consumed; and in effect the case finds that at the time the general average loss was sustained there remained on board unconsumed provisions to the value of 1,1627. The defendants were benefited to that extent by the salvage. Whatever is capable of insurance is liable to contribution to general average, and it is clear that the stores shipped for the use of these convicts might have been the subject-matter of an insurance. Mr. Serjeant Bosanquet, contra, was stopped by the Court. Lord Chief Justice BEST.-It is not necessary for us to consider the policy of the law upon the subject of the liability of property on board a vessel to contribution in the case of a general average loss; it is perfectly consistent with justice. The law is of foreign origin. It is founded on the civil law, and was first introduced into the law of England in the time of William the Conqueror. In Taylor v. Curtis, Lord Chief Justice Gibbs quotes only so much of the principle of the civil law as sufficed to decide the question then before him. The civil law only made the cargo of the ship, or the merces, subject to general average. It is not every thing of value on board that is liable to contribute, but only such as are termed merces; not the provisions, but the cargo put on board to be carried to its port of destination for the purposes of commerce. The practice shews that this has always been the general understanding. All the text-writers-Magens, Beawes, 1827. BROWN บ. STAPYLETON. |