M'Call v. Forsyth

The opinion of the Court was delivered by Rogers, J. — We affirm this judgment on the authority of the case of Brotherton and others, (7 Eng. Com. Law Rep. 343, 2 Brod. & Bing. 54); Ansell v. Waterhouse, (18 Eng. Com. Law Rep. 227, 2 Chitty 1); Bank of Orange v. Brown, (3 Wend. 158); to which may be added Zell v. Arnold, (2 Penn. Rep. 297). Chief Justice Savage, in The Bank of Orange v. Brown, (3 Wend. 158), reviews all tne authorities which bear on the question, and comes to the conclusion (in which we concur) that the true rule is, that an action solely on the custom is an action of tort; that the plaintiff has his choice of remedies, either to bring assumpsit or case; and that when one or other form of action is adopted, it must be governed by its own rules. That an action against a common> carrier upon the custom, is founded on a breach of duty; that it is a tort or mis-feasance. The declaration here is for a tort or misfeasance ex delicto, and not in contract; the plea not guilty: and from this it follows that the action is joint or several, and as a necessary consequence a recovery may be had of one for an injury [181] done by two or more of the joint tort-feasors. There was therefore no error in ruling that it was unnecessary to prove that all the defendants were partners, because they were jointly and severally liable for the tort or mis-feasance charged in the declaration. Judgment affirmed.