832. Rees v. Abbott, per Buller, J. So in Germain v. Frederick, T. T. 25 Geo. 3, K. B. MSS., which was assumpsit, stating that, in consideration that the plaintiff would bargain and sell to defendant twenty loads of flint stones, and would deliver them on board the Lord Macartney, the defendant would receive them on board, and would pay, &c.; breach, that he refused to receive. 2nd count, 2nd count, that he had not paid. At the trial the plaintiff failed in his parol proof, and then produced the following note, written by the defendant:-"Gravesend, March 29th, 20 carts on board the "Lord Macartney, by order of "H. Frederick and Captain "Neale." The plaintiff was nonsuited. In support thereof it was said, the declaration stated it to be a contract of defendant alone; the proof was of a joint contract. On the other side it was said, that the objection was only good if the fact had been pleaded in abatement. The court stopped the argument, or they would have cited Dixon v. Bowman, M. T. 1776, which was an "action against "two defendants on a promissory "note made by them jointly and

66

severally. In evidence it ap"peared that a third person had

Lutw. 695. Horner v. Moore, cited in Rice v. Shute, 5 Burr. 2611. Lloyd v. Green, cited in Abbot v. Smith, 2 Black. 947, were cited. The court agreed to this doctrine, and said the contract proved was the same as that laid. The objection is that the persons making it are different, which is precisely the case of Rice v. Shute. Rule absolute. So in Evans v. Lewis, Exchequer, E. T. 1794, MSS., which was an action against defendant as drawer of a bill of exchange. On non assumpsit pleaded, it appeared in evidence at the trial, that the bill was drawn by the defendant and another jointly. It was objected that there was a variance between the bill proved and the bill declared upon; and the judge inclined to that opinion, but permitted the cause to proceed, with liberty for the defendant to move for a new trial. A verdict being found for the plaintiff, a rule was obtained to shew cause why it should not be set aside. On shewing cause, the court was clearly of opinion that there was no variance between the bill of exchange proved and that which was dedeclared upon; but the defendant should have pleaded in abatement that another person drew the bill jointly with the defendant, who is still alive; and that the case fell directly within the reason and authority of Whelpdale's case. Rep. 119. 1 Saund. 291. Cabell v. Vaughan. 5 Burr. 2611. Rice

5

(g) So where one of two joint contractors is dead, the survivor may be sued without any mention being made of the deceased party; 1 B. & A. 29. Richards v. Heather, overruling in this respect 6 T. R. 363. Spalding v. Mure; and under the same count the plaintiff may recover a debt due from the defendant as survivor, and another due from him individually. Ibid. Neither in declaring on a bill of exchange accepted by the defendants and another person since deceased, is it any variance that the deceased person's name is wholly omitted. 1 B. & A. 224. Mountstephen v. Brooke. [So where to an action of debt on a judgment against one alone, nul tiel record was pleaded; and on the record being produced, the judgment appeared to have been recovered against the present defendant and several others; it was held no variance. 11 M. & W. 51. Cocks v. Brewer. p. 468.]

Ante,

But where the other joint-contractor is living, although he be personally discharged, the omission of his name is matter of plea in abatement. See ante, p. 215, note (o). And it has been held that the defendant might plead a

quasi contractu; and therefore, if an action be brought against one only of several persons upon

a

matter founded in contract, though the form of the action be

1

secret partnership between himself and others in abatement, although the plaintiff had no means of knowing of the partnership. 1 Marsh, 246. Dubois v. Ludert. 5 Taunt. 9. S. C. [But this case must be considered as overruled; and the rule now established is, that the plaintiff may join a secret partner as defendant, but is not bound so to do. M. & Malk. 88. Mullett v. Hook. B. & Ad. 398. De Mautort v. Saunders. And, therefore, where to an action for goods sold and delivered, defendant pleaded in abatement that the debt became due from him jointly with one W. S., and on the trial of an issue joined on this plea the judge directed the jury that the partnership was fully proved, but still that if the defendant gave the plaintiffs reason to believe that he alone constituted the firm with which the plaintiffs dealt, he would be solely liable; it was held that this direction was right, and that the defendant was not liable, unless he alone constituted the firm, or so held himself out to the plaintiff. 12 M. & M. 405. Bonfield and another v. Smith. As to the liability of a secret partner, there is no distinction between

case for malfeasance or nonfeasance, and the plea not guilty, yet the defendant must plead it in abatement. Carth. 62, 63. Boson v. Sandford. 6 T. R. 369. Buddle v. Wilson. And agreeable to these authorities it was holden in the case of Powell v. Layton. 2 Bos. & Pull. N. R. 365 (h), that, to an action on the case in the forin of tort against one of several joint owners of a ship, for not safely conveying goods which had been delivered to him by the plaintiff for that purpose, the defendant may plead in abatement that the goods were delivered to him and his partners jointly, and that his partners are not sued: although, indeed, in Govett v. Radnidge, 3 East, 62, which was an action against three, wherein the plaintiff declared that they had

contracts by parol, or implied contracts, and express contracts in writing not under seal, with the known and apparent partners. 9 M. & W. 79. Beckham v. Drake, overruling Beckham v. Knight, 4 Bing. N. C. 243. 5 Scott, 619.]

(h) 19 C. B. N. S. 238, per Erle, C. J. Accord.

(i) See also 2 N. R. 454. Max v. Roberts, S. P.; but that judgment was reversed in K. B. on other grounds. 12 East, 89. And in K. B. on a declaration in case, alleging a deceit to have been practised on the plaintiff by means of a warranty made by the

the loading of a hogshead of treacle of the plaintiff's for a certain reward to be paid to one of them, and a certain other reward to the other two, and that the defendants so negligently conducted themselves in the loading, &c., that the hogshead was damaged, it was decided that the gist of the action was the tort and not the contract, out of which it arose; and therefore, that, on the plea of not guilty, two being acquitted, judgment might be had against the third who was found guilty; and the court seemed to deny the cases of Boson and Sandford, and Buddle v. Wilson. But the Court of C. P., in the beforecited case, upheld the authority of those two cases, and in truth overruled the case of Govett v. Radnidge (i).

two defendants on a joint sale of sheep, the plaintiff cannot recover against one on proof of a separate sale and warranty; the action, although laid in tort, being founded on contract. 12 East, 452. Weall v. King and another. See also 2 Marsh. 485. Green v. Greenbank, and Brod: & Bing. 54. Bretherton v. Wood. From all the cases, and especially that last cited, the principle appears to be this, that where the action is maintainable for the tort simply without reference to any contract made between the parties, no advantage can be taken of the

But if several persons jointly commit a tort, the plaintiff has his election to sue all or any number of the parties; because

omission of some defendants, or of the joinder of too many, as for instance in actions against carriers, which are grounded on the custom of the realm. 19 C. B. 238, per Erle, C. J. accordingly. [6 M. & S. 385. Ansell v. Waterhouse.] But where the action is not maintainable without referring to a contract between the parties, and laying a previous ground for it by shewing such contract, there, although the plaintiff shapes his case in tort, he shall yet be liable to a plea in abatement, if he omit any defendant, or to a nonsuit, if he join too many; for he shall not, by adopting a particular form of action, alter the situation of the defendant. On this last ground undoubtedly the case of Green v. Greenbank was determined, in which it was held that infancy was a good plea to an action on the case on a warranty, [These authorities were much discussed in the late case of Pozzi v. Shipton and another, 8 A. & E. 963. 1 Perr. & D. 4. S. C. There the declaration stated that the plaintiff delivered to the defendants, and they accepted and received from him, goods to be taken. care of, and carried and conveyed by the defendants from London to Birmingham, and there de

a tort is in its nature the separate act of each individual; and therefore in actions ex delicto, such as trespass, trover, case for malfeas

livered to one P.P. for the plaintiff for reasonable reward to the defendants in that behalf; and thereupon it became the duty of the defendants to take due care of such goods while they so had the charge thereof for the purpose aforesaid, and to take due and reasonable care in and about the conveyance and delivery thereof as aforesaid; yet the defendants, not regarding their duty in that behalf, but contriving, &c., did not nor would take due care, &c., but on the contrary, whilst they had the charge, &c., took such bad care, &c., that the goods were, injured, to the plaintiff's damage, &c. &c. A verdict was found against one of the defendants only; and it was argued, against the validity of such verdict, that this case differed from Bretherton v. Wood, inasmuch as the declaration did. not state the defendants to be carriers, whereas in Bretherton v. Wood 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; that this action, therefore, appeared on the pleadings to be really founded on contract though formally in tort; and so, according to Powell v. Layton, the incidents

of an action on contract applied, one of which is that the defendants are answerable jointly or not at all; and that Govett v. Radnidge could not be supported. But the court held that the declaration might, and therefore must, after verdict, be read as a declaration founded upon the general custom of the realm, and not on contract; and that, taking it to charge the defendants as common carriers, it was strictly an action. on the case for a tort, and that one of several defendants might be found guilty upon it, according to Bretherton v. Wood. In acIn ac cordance with the cases above cited are, 5 Bingh. N. C. 733. Gladwell v, Steggall. 11 Price, 400. Pippin v. Sheppard. So in 2 E. & E. 844. Tattan v. G. W. R. Co., it was held that an action against a common carrier for the breach of his duty to carry safely goods delivered to him as such to be carried for hire, was not an action of contract, but a suit. against the defendants for breach of their common law duty; and, therefore, although the plaintiff had recovered less than 207. by a judgment by default, he was not deprived of his costs by the County Court Acts. See also 1 H. & N. 500. Legge v. Tucker.

in evidence on the general issue. A plea in abatement can only be in those cases where regularly all the parties ought to be joined,

Accord. So in 11 C. B. 655. Marshall v. The York and Newcastle Railway, a declaration in case against a railway company for the loss of a passenger's luggage, stated that the defendants received the passenger, to be safely carried, together with his luggage, for reward. It then alleged that it was the defendants' duty safely and securely to carry the plaintiff and his luggage, and averred a breach of that duty, whereby the luggage was lost. And it was held that, the action being founded on the breach of duty and not on contract, it was not necessary to allege or to prove that the reward was to be paid by the plaintiff, but that the plaintiff was entitled to recover, although it appeared that the fare was paid by the plaintiff's master, with whom he was travelling at the time. (See also E. B. & E. 899. Dalyell v. Tyrer. 8 B. & Sm. 334. Austin v. Great W. R. Co., per Blackburn, J.) But in 19 C. B. N. S. 213. Alton v. The Midland R. Co., it was held that an action will not lie against a railway company, as carriers of passengers for hire, at the suit of a master, for a personal injury sustained through their negligence by his servant, whereby the master