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declaration has prevailed since the decision of Dale v. Hall, M. T. 1750, in which it was settled, that it did not make any difference, whether the plaintiff declared on the custom, or more generally in assumpsit; for, by stating that the defendant carried for hire, it would appear that the defendant was a common carrier, and then the law would raise the promise from the nature of the contract. But although the plaintiff is not bound to allege the custom, yet he must produce sufficient evidence to bring his case within the customf.

The advantage resulting to the plaintiff from declaring in assumpsit is, that he may join the common counts with the special counts in assumpsit, if he has other and distinct 8 causes of action to which they are applicable. The inconvenience which arises from declaring in assumpsit is, that it lets in a plea of abatement for want of joining all the parties, and it excludes the right to join a count in trover.

If the plaintiff is desirous of avoiding this inconvenience, he may either pursue the ancient method of declaring with a recital of the custom, or he may adopt a more general form (omitting the recital of the custom,) and allege his gravamen as consisting in a breach of duty arising out of an employment for hire, and may

consider that breach of duty as a tortious negligence. But under the new rules, H. T. 4 W. 4, in actions of tort for misfeazance, several counts for the same injury, varying the description of it, are not allowed. And in the like actions for nonfeаzance, several counts founded on various statements of the same duty, are not allowed. Declaring in tort, the plaintiff was permitted to add a count in trover, whereby the defendant was ousted of his plea in abatementh, on the ground of not joining all the parties; and further, if the action was brought against several defendants, and some were found guilty, and others acquitted, the plaintiff was, notwithstanding, entitled to judgment against those who had been found guiltyi. The reader, however, should be apprized, that the

f Per Lord Hardwicke, C. J. in Bou

cher v. Lawson, H. 9 G. 2. B. R.

Ca. temp. Hardw. 199. & See new rules. h Mitchell v. Tarbutt, 5 T. R. 649.

Ansell v. Waterhouse, B. R. Trin,

T. 57 Geo. 3. 6 M. and S. 385. i Govett v. Radnidge, B. R. 3 East,

02. Cowper v. South, 4 Taunt. 802. Eretherton v. Wood, 3 B. and B. 54.

improper to recite the custom in the declaration, because it tends to confound the distinction between special customs, which ought to be pleaded, and general custom of the realm, of which the courts are bound to take notice without pleading."

doctrine laid down in Govett v. Radnidge, was opposed by two decisions in the Court of Common Pleas, viz. first by the case of Powell v. Layton, 2 Bos. and Pul. N. R. 365, in which it was determined, that a declaration against a carrier by water, stating, “that he had received goods to carry

for freight, but that he had not delivered them according to his duty," was founded in contract; and that to a declaration so framed, the defendant might plead that he was only liable jointly with his partners, and that his partners were not sued; and, secondly, by the case of Max v. Roberts, and eight othersk; there the gravamen was alleged as consisting in a breach of duty as ship-owners, arising out of an employment for freight. The plaintiff could not prove all the defendants to be owners; the court were of opinion, that, as the action was founded in contract, it was incumbent on the plaintiff to prove all the defendants to be 'owners, and having failed in that, he could not recover against those who were proved to be owners. A writ of error was brought, which, having been twice argued in the Court of King's Bench, was adjourned to the Exchequer Chamber, as it was supposed that a decision in this case might settle and put at rest the question upon which the contrary judgments had been given ; but, after argument, the twelve judges were unanimously of opinion, that both the counts of the declaration were so defective in several material respects, (perfectly collateral to the question upon which the determination of the judges was sought,) that no judgment could be given for the plaintiff upon

either of them? But where an action on the case was brought against ten defendants, proprietors of a coach, for the carriage of passengers for hire, for injuries sustained by plaintiff, a passenger, in consequence of negligence in driving, whereby the coach was overset, and the jury found against eight of the defendants, and in favour of the other two; and judgment was entered accordingly in B. R. On error in Exchequer Chamber, the judgment was affirmed", the court observing, that in this case a duty was imposed on the defendants which did not arise by the contract, but by the custom or common law of England.

Trover will not lie against a common carrier for merely losiny goods entrusted to his care without any actual wrong (11). The proper form of action is the action on the case before mentioned. Although goods are spoiled by the default of the master of the ship, yet the owners are liable in respect of the freighto, if charged on the custom of the realm, or as usually carrying for hire, or upon an express undertaking : but not otherwisep. In this case the declaration (if in assumpsit) ought to be against all the owners; but if one or more are not named as defendants, advantage can be taken of the omission by plea in abatement only. The same rule holds with respect to all common carriers who are partners, or who make a joint contractr. A ship was chartered to the commissioners of the navy as an armed vessel, who put on board a commander in the navy and a king's pilot, the master and crew being appointed and paid by the owners. In consequence of the improper execution of an order given by the commander, the chartered ship ran foul of another ship. It was holdens, that the owners of the chartered ship, were liable for the injury which the other ship sustained; for the chartered ship, notwithstanding it had an officer on board, was, with regard to third persons, to be considered as the ship of the owners.

k 2 N. R. 454.
I Max v. Roberts, 12 East, 89. But

see Weall v. King, 12 East, 452.
m Bretherton and others v. Wood,

Exch. Ch. 3 Brod, and Bingh. 54.

n Ross v. Johnson, 5 Burr. 2825. Kirk

man v. Hargreaves, (case from Lancaster Sum. Ass. 1800, before Graham, B.) B. R. H. 41 G. 3. MSS. S.P.

Pleading under new Rules.-In case against a carrier the plea of not guilty will operate as a denial of the loss or damage, but not of the receipt of the goods by the defendant as a carrier for hire, or of the purposes for which they were received. R. G. H. T. 4 W. 4. All matters in confession and

o Boson v. Sandford, Salk. 440.3 Lev. p Boucher v. Lawson, Ca. temp. Hardw.

258. 1 Show. 29. 2 Show. 478. Skin. 194. 278. 3 Mod. 321. Carth. 58. S. C. q Rice v. Shute, 5 Burr. 2611. See also Colvin v. Newberry, 8 B. r Butsee stat. 1 W.:4. 0. 68. s. 5. ante & C. 166. reversed on error in Exch. Chr. 7 Bingh. 190.

s Fletcher v. Braddick, 2 Bos. and Pul.

N. R. 182.

p. 404.

(11) But if the carrier has the goods in his custody at the time when he refuses to deliver them, this will be evidence of a conversion, Salk. 655. So trover will lie against a carrier who delivers goods to a wrong person through mistake. Per Kenyon, C. J. Youl v. Harbottle, Peake's N. P. C. 49. recognized in Devereur v. Barclay, 2 B. and A. 704. The owner of goods on board a vessel directed the captain not to land them on the wharf, against which the vessel was moored, which the captain promised not to do, but afterwards delivered them to the wharfinger, conceiving that the wharfinger had a lien on the goods for wharfage fees; it was holden, that the owner might maintain trover against the captain, who could not prove that any wharfage duty was due.-Syeds v. Hay, 4 T. R. 260.

avoidance of actions on the case shall be pleaded specially, as in actions of assumpsit. Ib.

As to payment of money into court, see ante, p. 137, and new rules.

VI. Evidence.

In an action against the owner of a vessely, for not safely carrying the goods of the plaintiff

, the plaintiff called the master of the vessel, whom he had released, as a witness to prove his case: Lord Kenyon, C. J. admitted him, obserying that the master had not any immediate interest; that the record in this cause would not be evidence for or against him in an action brought against him; and although it should appear, that the vessel was lost through the negligence of the witness, yet the present defendant was liable to the plaintiff; consequently, taking it either way, he was a good witness. Action against defendants* as owners of a coach, for the loss of a parcel. To prove the ownership, on the part of the plaintiff

, an entry in the book, kept at the proper office in Somerset House, stating the defendants to be licensed as owners of the coach, was produced; and it was contended, that as the entry was made in pursuance of stat. 25 G. 3. c. 51. s. 50, 51, it must be presumed to be accurate, and was at least prima facie evidence; but Gibbs, C. J. rejected it, observing that the entry not being signed by the defendants, and nothing being shewn to connect them with it, it was no evidence to prove them to be owners of the coach. The inscription on a stage-coach of the name of the party is evidence, in an action against him, of ownership, for the statute is not confined to proceedings before magistrates.

A parcel, containing bank-notes, stamps, and a letter, was sent, by a common carrier, from one stamp distributor to another; it was holden?, in an action against the carrier, that the circumstance of the letter accompanying the stamps was prima facie evidence that it related to them, so as to bring the case within the proviso of the 42 G. 3. c. 81. s. 6. which enacts, "that the prohibition to send letters otherwise than by the post, shall not extend to letters sent by any comu Lay v. Holock, Peake's N. P.C. 101. y Barford v. Nelson, 1 B. and Ad. 571. x Strother v. Willan and others, 4 z Bennett v. Clough, 1 B. & A. 461.

Campb. 24. See also Tinkler v. Walpole, 14 East, 226. S. P. as to register of a ship.

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mon carrier, with and for the purpose of being delivered with the goods that the letter concerns:” and that the defendant not having proved the letter to relate to any other subject matter, was liable for the value of the parcel.

Declaration, that for certain hire and reward, defendants undertook to carry goods from London and deliver them safely at Dover. The contract proved was to carry and deliver safely (fire and robbery excepted). It was holden that this was a variance. A memorandum by a wharfingerb of the receipt of goods to be shipped in a particular manner, may be given in evidence to shew the terms on which they were received withont a stamp, although the value of the goods was above 201. the wharfage being of a less amount. A book-keeper to a carrier is a good witness for him, of necessity, without a release. A carrier employed by A. first to carry a sum of money 'to B. and then the like sum to C. in an action by A. against C. is a witness of necessity, and may be examined without a released to prove that by mistake he delivered both sums to C. a Latham v. Rutley, 2 B. & C. 20, c Spencer v.Goulding, Peake's N. P. C. b Chadwick v. Sills, 1 Ry. & M. 15. 129.

recognized by Abbott, C. J. in Lat- d Barker v. Macrae, 3 Campb. 144. ham v. Rutley, ib. 13.

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