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the goods were injured, to the plaintiff's damage. At the trial it was proved satisfactorily, that the defendant, against whom the verdict was obtained, was a common carrier, and it was not objected at the time, that proof of an express contract was necessary in order to sustain the declaration. Under these circumstances, the Court of King's Bench refused to disturb the verdict, observing, that as the language of the declaration was consistent with the action being founded on the general custom, and as there were no words of express contract, the Court after verdict was bound to read it as founded on the custom; and that it was not then necessary to say, whether the want of an express averment that the defendants were common carriers for hire, would have been good on special demurrer.
II. However, as to actions ex quasi contractu against partners, other than those which we have just noticed, it seems most consistent with principle, and most agreeable with the tenor of modern authorities, that they should be considered as actions ex contractu, and that the form of the action is not to vary the right of defence (a). The case of Govett v. Radnidge (6), which is at variance with this doctrine, appears to be no longer law. That was an action against three, wherein the plaintiff declared that they had the loading of a hogshead 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; and it was held 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, the two being acquitted, judgment might be had against the third who was found guilty. But this case has been expressly disapproved of (c); and Lord Ellenborough, who delivered the judgment of the Court in Govett v. Radnidge, seems himself on a subsequent occasion to have doubted its authority (d).
In Weal v. King (e), the declaration stated, that the plaintiff bargained with the defendants for certain lambs as sound lambs,
(a) i Chit. Pl. 36, note ().
(d) 12 East, 454.
and then alleged a deceit to have been effected on him by means of a warranty made by the defendants upon a joint sale to him of both of the lambs, their joint property; it was held that the action, though laid in tort, was founded on the joint contract alleged; and, therefore, that the plaintiff could not recover upon proof of sale and warranty by one only, as of his separate property.
It is to be observed, that in the case just cited, an express joint contract appeared on the face of the declaration, and, indeed, the allegation of a joint contract of sale was not only material, but essentially necessary to the joint warranty alleged upon record to have been made with the supposed sellers. It might, perhaps, be a question whether, if an action on the case were brought against several defendants, in a matter where there is no action by the custom of the realm, and no express or particular contract were stated on the declaration, such action would be considered as laid in tort or in contract; but, upon the whole, it is conceived that the Court would look to the real nature of the case, without reference to the form of the declaration; and would hold the action to be attended with the consequences of tort or contract, according as tort or contract was the essence of the actual transaction between the parties (a).
Of the Declaration.
In bailable process, the plaintiff, before the stat. 1 & 2 Vict. c. 110 (6), could not declare against one defendant separately, upon joint process and affidavit to hold to bail against two, even though they were sued upon a joint and separate promis
(a) See and consider Jennings v. Rundall, 8 T. R. 335; Green v. Greenbank, 2 Marsh. 485; Marzetti v. Williams, 1 Barn, & Adol. 415;
Burnett v. Lynch, 5 Barn. & Cres. 589; Newberry v. Coloin, 7 Bing. 190.
() See ante, p. 494.
sory note (a); and the rule was the same, although the party not declared against was out of the jurisdiction of the Court (6); but, in process not bailable, if the writ were joint and the declaration several, it was not irregular (c). And since the above-mentioned act, it would seem that any palpable difference between the bailable proceedings and the main proceedings in the action will not be allowed (d).
We have seen, that under a contract made with the firm, all the partners must be sued (e); but that where a separate security is given for the joint contract, either the party giving the security may be sued separately, or all the partners may be sued jointly (f). In this last case, if it be intended to sue all the partners, the security must be abandoned, and the declaration must be confined to money counts against all the partners (9).
Upon the death of a partner, the plaintiff may, in his declaration against the surviving partner, include a demand against him as survivor, with a demand against him as if he were solely liable (1). An action also on the partnership account may be maintained against the survivor without describing him as such; for if both had been alive, and one only had been sued, it would, as we have seen, have been no defence upon the general issue, but only on a plea in abatement. Therefore, it has been held, that under a declaration, charging the defendant in his own right only, the plaintiff may recover one demand due from the defendant individually, and another due from him as surviving partner (i).
But, although in a declaration against the surviving partner, it is not absolutely necessary to state the survivorship, yet, Lord Ellenborough observed that it would be more convenient in all cases where a debt accrues from a surviving partner, to
(a) Lewen v. Smith, 4 East, 489. 561.
(6) Thompson v. Cotter, 1 Mau. & (e) Ante, p. 496. Selw. 85.
(f) Ante, pp. 316, 323. (c) Stables v. Ashley, 1 Bos. & (9) Emly v. Lye, ante, p. 316 ; Pul. 49; Ecans v. Whitehead, ante, Denton v. Rodie, ante, p. 323.
(1) Golding v. Vaughan, 2 Chit. (d) i Chit. Archb. Pr. 514. An 436. agreement to stay “proceedings” in (i) Richardsv. Heather, 1 Barn. & the action, includes bailable pro- Ald. 29, overruling, upon this point, ceedings. Ball v. Stanley, 4 Jurist, Spalding v. Mure, 6 T. R. 363.
declare against him accordingly, because it is more convenient to make the forms of declaration subservient to the information of the party charged (a); and it is certainly more usual to declare on a contract with the deceased partner and the survivors, rather than with the survivors alone (6). And where A. was co-executor with B., and B. copartner with C., and B. paid into the firm money received by him as co-executor; upon the death of B. a declaration in assumpsit for this money was held bad, in which A. declared in his own right, and not as surviving executor, against C. in his own right, and not as the surviving copartner (c).
In an action against two defendants, of whom one only appears, or is in custody, the plaintiff may proceed to outlawry against the other, and may then declare against the one who has appeared alone, stating the outlawry of the other in the commencement of the declaration (d). In such case, it is not enough to allege that the party was in due manner outlawed, without adding that he was outlawed in that suit (e). But an allegation, that a co-defendant was, by due course of law, outlawed at the suit of the plaintiff in this plea and suit, is sufficient, without a prout patet per recordum (s).
The omission of one of several joint contractors as a defendant in assumpsit being matter of abatement only, if it be not so pleaded, the action proceeds as if the promise had been made exclusively by the party sued on the record (g). Therefore, where one of two partners becomes bankrupt, and obtains his certificate, and an action is brought against the solvent partner alone, a declaration in which counts upon a promise by the defendant and another, since become a bankrupt and certificated, are joined with counts on promises by the defendant solely, since the other became a bankrupt, will stand good, if the defendant omit to plead the joint contract in abatement (h).
(a) See note (i), p. 513.
M Michael v. Johnson, 7 East, (6) Per Le Blanc, J., 2 Mau. & 50. Selw. 25.
(9) Per Gibbs, C. J., Hawkins v. (c) Fitzgerald v. Boehm, 6 Moore, Ramsbottom, 6 Taunt. 179; see ante, 332. (d) 2 Chit. Archb. Pr. 934.
(h) Hawkins v. Ramsbottom, 6 (e) Saunderson v. Hudson, 3 East, Taunt. 179. But, per Gibbs, C. J., 144.
“I say nothing on the question
Of Pleas in Abatement.
Pleas in abatement to the writ are so termed rather from their effect than from their being strictly such pleas; for, as oyer of the writ can be no longer craved, no objection can be taken by plea to matter which is merely contained in the writ; but, if the mistake in the writ be carried also into the declaration, or rather if the declaration, which is presumed to correspond with the writ, be incorrect in respect of some intrinsic matter, it is then open to the defendant to plead in abatement to the writ, and there is no plea to the declaration but in bar (a).
We have seen in what cases the non-joinder of partners as co-defendants ought to be taken advantage of by plea in abatement (6). It may here be added, that the misnomer of one partner, who is sued jointly with others, can no longer be made available by plea in abatement; but that the defendant who is misnamed may cause the declaration to be amended at the plaintiff's costs, by inserting the right name (c).
As these pleas delay the trial of the merits of the action, the greatest accuracy and precision are required in framing them. They should be certain in every intent, and be pleaded without any repugnancy; and must in general give the plaintiff a better writ (d). It has, therefore, been laid down, that if A. plead a partnership between himself and B., and, after issue joined, a partnership is proved between A., B., and C., this is conclusive against the defendant (e). And it has been decided that a plea in abatement, that the defendant jointly with sixteen others contracted, imports that the defendant jointly with sixteen others and no more contracted, and that if more did contract, the plea is bad (. And where, before the passing of the act
what would be the case, if, before a (c) Stat. 3 & 4 Will. 4, c. 42, Judge at Nisi Prius, the plaintiff
s. 11. had offered evidence applicable to (d) i Chit. Pl. 395. both demands."
(e) Per De Grey, C. J., 2 Sir W. (a) i Chit. Pl. 390.
Bl. 947. (6) Ante, p. 496, et seq.
(f) Godson v. Good, 6 Taunt. 507.