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involve considerations of contract, they will be the subject of discussion in the ensuing section.
What has been said regarding the joinder of one or more defendants in tort, does not apply to actions which concern real property. For where there are several owners or persons chargeable as joint-tenants, or tenants in common, in respect of their real property, though the action be in form ex delicto, they should all be made defendants, or the party who is sued alone may plead in abatement (a).
There ar: various torts, which in legal consideration may be committed by several, and for which a joint action may be supported against all the parties. But if several persons be made defendants jointly, where the tort could not in point of law be joint, they may demur; and if a verdict be taken against all, the judgment may be arrested or reversed on a writ of error: but the objection may be remedied by the plaintiff's taking a verdict against one only, or, if several damages be assessed, against each, by entering a nolle prosequi as to one after the verdict, and before judgment (6). There cannot, however, be a nonsuit as to one, and a verdict against the others (c).
of the Parties to Actions ex quasi contractu.
It may, perhaps, be laid down-1. That in all actions ex quasi contractu, except against common carriers for breach of their duty as carriers, the same rules are applicable in regard to the parties to be made defendants, as in actions, ex contractu. 2. That these rules are applicable to actions against common carriers, when the declaration states a special contract. 3. That, otherwise, an action against a common carrier is to be consi
(a) 1 Wms. Saund. 291 f; Bro. Action on the case, 32; 1 Saund. 291.
(6) 1 Chit. Pl. 77.
(c) Revett v. Browne, 2 Moore & Payne, 18.
dered as entirely laid in tort, and attended with all the consequences of an action in tort; it being an ancient action, founded on the custom of the realm, against a public servant, for the breach of his public duty.
In regard to actions against common carriers, it was held in a series of decisions, that if the declaration was grounded on contract, and not on tort, though the contract as stated was only general and arising by implication, the action must be considered as in the nature of an action ex contractu, and therefore liable to a plea in abatement, if all the joint contractors were not sued. Thus in Boson v. Sandford (a), the plaintiff declared—“That whereas, on the 10th day of May, 1685, the plaintiff had, at London, delivered and laden, on board the ship (6) called &c., whereof the defendants where then and there owners, (in which said ship the goods and wares of persons requiring the carriage thereof were commonly carried and transported, for reasonable freight and salary), divers goods and wares of the said plaintiff, to wit, &c., in good order and well conditioned, to be safely transported, &c., for a reasonable freight and salary by the plaintiff to the defendants, for such carriage thereof, to be paid ; and the said defendants, the same goods &c. then and there had and received, and them to transport and carry, in form aforesaid, did undertake; nevertheless the defendants, not regarding their duty in this behalf, fraudulently intending to injure, &c., the said goods and wares, in such good order and condition as they were at the time of the delivery and lading thereof on board the aforesaid ship, to the said plaintiff did not deliver; but the same goods, &c., so improvidently and negligently did place, carry, and keep in the said ship, in the said voyage, that, by the default of the defendants and their servants &c., the said goods, by the sea water coming into the said ship, were spoiled and damnified.” To this declaration the defendants pleaded not guilty; and, upon special verdict found—“that there was a master of a vessel who acted, that the goods were delivered to him and lost, and that the defendants were proprietors, and that here are others not named” &c.—the Court gave judgment for the defendants, all the Judges agreeing that the action, though in form ex delicto, was grounded in contract, and that the other parties ought to have been named; that the declaration was, that the defendants super se susceperunt ; and that it was the same as if it had been said super se assumpserunt, in consideration of a promise to pay the hire, that the goods should be safe carried.
(a) 2 Show. 478; 1 Show. 101.
(6) Shipowners may be common carriers. Morse v. Slue, 1 Ventr.
190; 2 Lev. 69. The contrary is said arguendo, 2 Chit. 2.
So in Powell v Layton (a), the declaration stated, that the plaintiff, “ at the special instance and request of the said defendant, had caused to be delivered to the said defendant divers goods, to wit &c., to be carried and conveyed by him, the said defendant, on board &c., to be delivered in the like good order, and well conditioned, all and every the dangers and accidents of the sea, and of navigation, &c., excepted, unto order, for certain freight to be therefore paid to the said defendant; and although the said defendant took and received the said goods &c., and although the dangers &c., did not prevent &c., yet the said defendant, not regarding his duty, did not &c. carry, convey, and deliver the said goods, or any part thereof, according to his said duty, but wholly failed and neglected so to do, and so carelessly and negligently &c., that the goods were lost.” The defendant pleaded in abatement the non-joinder of the other persons who were his partners, and jointly interested in the vessel, and, upon demurrer, the Court gave judgment for the defendant; Mansfield, C. J., observing, that, although the word suscepit was not used in the declaration, yet the nature of the charge was, that the defendant agreed to carry the goods to Sicily, and had failed in the performance of his agreement.
In Max v. Roberts (6), the point in the cause was decided on the same principle, although the question arose in a different shape. There, the declaration stated that the defendants were owners of a ship, and that the goods were shipped on account of the plaintiff, to be carried &c. On the trial, he failed in proving that the defendant Roberts, and the eight other defendants, were part-owners; by his evidence he affected the eight only. The Court gave judgment of nonsuit.
But the doctrine contained in the foregoing cases, unless any of them be considered to involve special contracts (c), must now,
(a) 2 N. R. 370.
the contract in Powell v. Layton to
“ The ship,” if applicable in any case, be confined to carriers by water; for with respect to carriers by land, unless a special contract appear on the declaration, it is unnecessary for the plaintiff to sue all the carriers. For by the stat. 11 Geo. 4 & 1 Will. 4, c. 68, sects. 5 & 6, any one or more mail contractors, stage coach proprietors, or common carriers by land for hire, shall be liable to be sued by his, her, or their name or names only; and that no action or suit commenced to recover damages for loss or injury to . any parcel, package, or person, shall abate for the want of joining any coproprietor or copartner in such mail, stage coach, or other public conveyance by land for hire. Provided that nothing in the act shall extend, or be construed to annul, or in any wise affect any special contract for the conveyance of goods.
And, independently of the statute just referred to, the inclination of the Courts, at present, seems to be to consider actions against common carriers as laid in tort, unless the declaration state very explicitly a case of contract. This observation is, of course, applicable to all common carriers, whether by land or by water. In Ansell v. Waterhouse (a), the declaration charged the defendant as proprietor of a common stage coach for carrying passengers from London to Manchester for hire, and that he received M. A. as a passenger to be safely carried from Manchester to Liverpool, for a certain fare, and by reason thereof, ought carefully to have conveyed her; yet the defend. ant, not regarding his duty, conducted himself so carelessly, that by the negligence of him and his servants, and for want of due care and attention to his duty, the coach was overturned, whereby M. A. was injured. The defendant pleaded in abatement the non-joinder of the other proprietors as co-defendants, but the Court of King's Bench held that the plea was not sustainable. Lord Ellenborough observed, that there was not a word in the declaration sounding in contract, and that there was nothing to oust the plaintiff of the benefit of declaring on the custom with all the consequences. That the practice of declaring against common carriers on the custom of the realm, was as ancient as the law itself, and was uniformly adopted until somewhere about the time of Dale v. Hall (a); since then, it had been usual not to declare in this form, but in contract; yet, the modern use did not supersede, although it had supplanted the former practice of declaring in tort. That the advantage of proceeding on the custom of the realm was, that the plaintiff might sue one or more of several tort-feazors, as in tort all the parties need not be joined.
common ship, nor the defendant to be a common carrier. The declaration, moreover, referred to terms of express contract, for it alleged that the goods were to be delivered, all dangers and accidents of the seas and of navigation of whatever kind excepted; which exception could only have subsisted by virtue of an express contract.” 6 Mau. &
(a) 6 Mau. & Selw. 385; 2 Chit. 1. It seems, that in an action on the case against stage coach proprietors, for an injury from mismanagement in driving the coach, the proprietors and the coachman may be sued jointly. Whitamore v. Waterhouse, 4 Car. & Pay. 385.
In the case of Bretherton v. Wood (6), the cause of action and the declaration were nearly the same as in the preceding case. The defendants, however, pleaded not guilty, and the jury having found all guilty except two, judgment was entered up accordingly. A writ of error was then brought, averring that judgment should have been given either against all or for all the defendants, but the Court affirmed the judgment, holding that the declaration in this case was laid in tort.
Again, in the late case of Pozzi v. Shipton (c), the declaration contained no words of contract, but, on the other hand, it did not expressly aver that the defendants were carriers. The Court of King's Bench, however, were of opinion that the declaration might be read as founded on the general custom of the realm, and consequently, that a verdict which had been obtained against one defendant and in favour of the other was maintainable. The declaration, which was in case, stated that the plaintiff delivered to the defendants, and they accepted and received from him, goods, to be taken care of and conveyed by the defendants from Liverpool to Birmingham, and there delivered to A., 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, &c., did not nor would take due care, &c., and that
(a) 1 Wils. 281.
(6) 6 Moore, 141; 3 Brod. & Bing. 52. (c) 8 Ad. & Ell. 963; 1 Per. & D. 4.