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v. Dixon (a) was trover for a dog; the second count alleged that the plaintiff, at the request of the defendant, delivered a dog to bim, to be seen and viewed by him, and to be returned in a reasonable time; yet the defendant, contriving &c., did not return the dog, but through his carelessness lost the same. On special demurrer for joining a count founded on breach of promise, with a count in trover, the Court gave judgment for the plaintiff, and observed that, " wherever the same plea may be pleaded, and the same judgment given on two counts, they may be joined in the same declaration. Assumpsit and tort cannot be joined together, because the pleas to both are not the same. But the whole of this is case.” [Patteson J. That is not the true rule, because debt and detinue may be joined together, although the judgments are different; and again, trespass and case cannot in general be joined, although the same pleas are pleadable, and the judgment in each is for damages and costs. The rule laid down in Dickon v. Clifton (b), was reconsidered in Mast v. Goodson (c).] The cases on this subject are collected in the notes to Cabell v. Vaughan (d), and the rule appears to be clearly laid down there that it is only where the action is not maintainable without proving a contract between the parties, as in Powell v. Layton (e), Weall v. King (f), and Green v. Greenbank (g), that, whether the declaration be in case or assumpsit, all the incidents of an action of contract are applicable. It is true that in Buddle v. Willson (h), the inclination of the Court was, that the nonjoinder of defendants might be pleaded in abatement to an action on the case against carriers, on the custom of the realm, but that case was decided upon another ground; and the doctrine itself, as well as the case of Boson v. Sandford (i), may be
0. SuIPTON and another.
(a) 1 T. R. 274.
(f) 12 East, 452.
(i) 3 Lev. 258; S.C. ? Salk.
(e) 2 N. R. 365.
SuIPTON and another.
considered as overruled by Govett v. Radnidge (a). lu Dale v. Hall(6), on which Lord Kenyon C. J. relied, in Buddle v. Willson (c), the declaration was in assumpsit, and therefore it is beside the present question. Some reliance will probably be placed on the want of an allegation in the declaration, that the defendants are carriers; but in 1 Selw. N. P. 416 (8th ed.), where the question is discussed, it is laid down as the result of the authorities, that the plaintiff may declare in case generally, without alleging the custom of the realm; and that by the statement of the defendants carrying for hire, it would appear that the defendants were common carriers. As the objection in this case was raised at Nisi Prius, if it had not fully appeared there that the defendant James Shipton was a common carrier, he would have obtained a verdict also.
Atcherley Serjt. and Crompton, contrà. For the last 150 years the current of decisions has been uniform, with the exception of Govett v. Radnidge (a); that, although carriers are liable for a breach of duty by the custom of the realm, their liability is founded on breach of contract. In Boson v. Sandford (c), Holt C. J. held expressly that this was not an action er delicto, but ex quasi contractu, and it was not the contract of one, but all; that there was no other tort but the breach of trust. This case was much discussed and was confirmed in Buddle v. Willson (c). [Palteson J. The decision in that case is a mere dictum, as the plea was bad on another ground.] All the cases are considered in Powell v. Layton (e), where it is shewn that Boson v. Sandford (f) is sound law, and was never questioned till the case of Govelt v. Radnidge (a). The principle is, that if a contract be the foundation of the action, the plaintiff shall not, by the adoption of a particular form
(a) 3 East, 62.
(e) 2 N. R. 365.
($) 3 Lev. 258; S.C. 2 Salk. 440; 1 Shower, 29.
SHIPTON and another.
of action, oust the defendant of any advantages he would be entitled to if sued in contract, viz. of pleading a nonjoinder of other defendants in abatement, of entitling the defendants to a verdict, if the cause of action should not be proved against all, and of excluding a count in trover. Thus, in Jennings v. Rundall (a) it was held, that an infant, who was sued in case for immoderately riding the plaintiff's mare, might plead his infancy in bar, as the action was clearly founded on a contract. Again, if the contract might be converted into a tort, parties might be made defendants to exclude their evidence; or if one partner may be sued alone on the tort, no contribution would be recoverable; Merryweather v. Niran (6). [Coleridge J. How do you distinguish this case from Bretherton v. Wood (c), except that there the defendants below were alleged to be the proprietors of a common stage coach. Here, it is stated to be the duty of the defendants to carry safely, and facts are shewn to prove what that duty is.] The judgment of Mansfield C. J. in Powell v. Layton (d), is relied upon: “ The duty of a servant, or the duty of an officer, I understand, but the duty of a carrier I do not understand, otherwise than as that duty arises out of his contract.” Both in Bretherton v. Wood (c) and in Ansell v. Waterhouse (e), the allegation in the declaration was considered to shew sufficiently, that the defendants were common carriers; but in the present declaration, for all that appears on the face of the record, the defendants had never carried goods before, and were never to carry again. They can only be liable in respect of the plaintiff's loss on their express contract, or on the custom of the realm; the contract has not been proved, and it is unheard of that the custom of the realm can attach to any party whatsoever, who undertakes to convey an article for reward. [Patteson J. The question is, whether the words in the declaration necessarily amount to
a contract.] If they do not, there is a mere nudum pactum alleged, and no duty whatever on the defendants. The decisions in all these cases have turned upon the state of the pleadings. In Bretherton v. Wood (a), although a contract was alleged, a tort sufficiently appeared, which was not necessarily connected with the breach of contract, and therefore it was held that the case was completely within the rule applying to actions of tort; but in all cases of carriers, a contract necessarily exists. [Patteson J. That is expressly denied in Bretherton v. Wood (a), and cannot well be, because a carrier is compellable to carry, and may be indicted for refusal.] That may be part of his liability, but if he does carry, that shew's his assent to the contract proposed. [Patteson J. The objection then may be raised on the record, as the second plea avers that the plaintiff did not deliver to the defendants, and the jury find that he did deliver to one defendant, and not to the other.] The objection also arises at Nisi Prius, for as the contract is alleged, it ought to be proved; and as no common law liability is charged against the defendants, evidence on that point is inadmissible. It was impossible for the defendants to traverse their being common carriers; the proof, therefore, of their being carriers, does not obviate the necessity of proving the contract. With regard to Govett v. Radnidge (6), it has often been overruled. Serjt. Williams (c) considered it to have been expressly so by Powell v. Layton (d). [Patteson J. That is rather a bold assertion, for if error had been brought in Powell v. Layton (d), there is no doubt that the Court of King's Bench, in the then existing state of the Court, would have adhered to Govett v. Radnidge (6).] Green v. Greenbank (e) may be also considered to have impugned Govett v. Radnidge (6), and Weall v. King (f), is a decision by the Court of King's Bench,
0. SHIPTON and another.
(a) 3 B. & B. 54.
(d) 2 N. R. 365.
at the very time that Mar v. Roberts (a) was under consideration in error, and is completely in accordance with the decisions of the Common Pleas. Marzetti v. Williams (6) and Godefroy v. Jay (c), are two recent decisions, in which the Courts have fully recognized the principle, that if a contract be the basis of the action, all the incidents of the contract apply, although the declaration may be framed in tort.
Cur. adv. vult.
SHIP'ron and another,
PATTESON J. now delivered the judgment of the Court.- This is an action against carriers for negligence. A verdict was found for the plaintiff against one of the defendants only, and upon a rule for a nonsuit having been obtained, the case was argued in the last Easter term, before my brothers Littledale, Coleridge, and myself.
The form of the declaration is in case, and differs from that used in Bretherton and others v. Wood in error (d) in this, that it contains no positive averment that the defendants were carriers; whereas in Bretherton and others v. Wood (d) there was an averment that the defendants were proprietors of a stage coach, for the carriage and conveyance of passengers for hire, from Bury to Bolton. The present declaration states simply that the plaintiff delivered to the defend. ants, and the defendants received from the plaintiff, goods to be carried for certain reasonable reward from A. to B. It is therefore consistent with the defendants being common carriers, or being hired on the particular occasion only. Upon the trial it was proved satisfactorily, that the defendant, against whom the verdict was found, was a common carrier, and it does not appear to have been objected at that time, that proof of an express contract between the plaintiff and the defendants was necessary, in order to sustain the declaration. If such proof was not necessary, it
(a) 2 N. R. 455; S. C. in error 12 East, 89.
(6) 1 B. & Ad. 415.
(c) 7 Bingh. 513.