the defendant, not regarding his duty as such common carrier, neglected and refused to receive and carry the goods; whereby the plaintiff was forced and compelled to carry the goods himself at great expense, and was injured and damaged to the amount sought to be recovered.1

It is not necessary to aver a strictly legal tender, a term which is only applicable where an absolute duty, such as the payment of an antecedent debt, is imposed on the party making it. The acts to be done by both parties, namely, the receipt of the goods, and the payment of a reasonable sum for their carriage, being contemporaneous acts; the carrier being bound to receive the goods on the money being paid or tendered, and the bailor to pay the reasonable amount demanded, on the carrier's taking charge of the goods; it is enough to aver readiness and an offer to pay. It would be repugnant to common sense to require the party offering goods for carriage to go through with the useless ceremony of laying down the money, in order to take it up again, where the party to whom they are offered refuses to accept the goods.2

§ 656. Where the carrier's service is to be performed mainly within the limits of tidewater, the proceedings against him may be had in admiralty, either in rem against his vessel, or in personam against the master and owners. The principles applicable are the same as at common law. The libel, in the form of a petition to one of the judges of the court, sets forth the cause of action with proper allegations to bring the action within the jurisdiction of the court. The answer of the respondents, in form very nearly the same as in equity practice, is then filed, admitting the allegations which are not denied and averring the facts constituting the defence.3

§ 657. But the usual remedy against the carrier is by an action at law, grounded either on the contract, as an action of assumpsit, or on his public duty, as an action on the case. The action in the nature of trover may also be sustained against him, where it can be shown that he has been guilty of a conversion of the property.5

1 Pickford v. The Grand Junction Railroad Company, 8 Mees. and Welsb. R., 372. The substance of the declaration in this case is stated in the text; the action was decided on a special demurrer, assigning for cause that plaintiff did not aver a tender; held that the law does not demand in such a case a strictly legal tender.

2 Rawson v. Johnson, 1 East R., 203; 7 Taunt. R., 314; 2 Bos. and Pull. R., 447. 3 The New Jersey Steam Navigation Co., respondents and appellants, v. Tho Merchants' Bank of Boston, 6 Howard's Rep., 344; Citizens' Bank v. Nantucket Steamboat Co., 1 Story R., 16.

4 Ross v. Johnson, Burr., 2825; 15 N. Y., 444; 29 N. Y., 115. Baldwin v. Cole, 6 Mod. R., 212; Richardson v. Atkinson, 1 Str. R., Packard v. Getman, 6 Cowen R., 757; 5 Robt., 318.

576;

The breach of his public duty is a tort, for which the carrier is liable to an action on the case, founded upon the custom. Since the abolition of the forms of action and pleading heretofore used in this State, we have nominally no distinction between one kind of action and another; but inasmuch as the law establishing the rights of parties remains unchanged, it is still just as essential and important as ever that the pleadings should be drawn so as to raise a right of recovery recognized by the law. In doing this it is indispensable that every fact should be alleged which is requisite to constitute the cause of action. If more than one cause of action be stated in the complaint, each cause of action must be stated separately; and so in respect to the answer, each defence or ground of defence must be stated separately.

Under the new Procedure the plaintiff may unite several causes of action in the same complaint, where they all arise out of contract, express or implied; but he cannot allege in the same complaint a cause of action arising on contract, and another for injury to property with or without force; nor can he in an action to recover personal property, with or without damages for the withholding thereof, insert a count for injury to the same.5

In general, the plaintiff must now state in his complaint all the facts which constitute his cause of action, whether arising ex contractu or ex delicto; and every fact is to be deemed constitutive, in the sense of the Code, upon which the right of action depends. Every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred; and every such averment must be understood as meaning what it says, and, consequently, is only to be sustained by evidence which corresponds with its meaning."

§ 658. Action on the Case. This form of action, against common carriers, is of very ancient use, and proceeds on the theory of charging them with the breach of a public duty, growing out of their employment, and imposed by law. The action is in some respects more convenient than an action founded on contract, which is of modern use. The

1 Jeremy on Car., 116.

2 Hall v. Southmayd, 15 Barb. R., 32.

3 Barker v. Russell, 11 Barb. R., 304; 7 id., 80; Russell v. Clapp, 7 id., 482. Boyce v. Brown, 7 Barb. R., 80; 5 Barb. R., 375.

Seo Code of Procedure § 167; Colwell v. N. Y. & Erie R. R. Co., 9 How.

Pr., 311.

6 Garvey v. Fowler, 4 Sand. R., 665; Bristol v. R. & S. R. R. Co. 9 Barb., 158 'Bretherton v. Wood, 3 B. & Bing. R., 54.

action on the case is for a tort or misfeasance, while a suit in assumpsit is always brought for the breach of either an express or implied promise. The form of action against a common carrier, is a question which has been considerably agitated in the English courts, and has been different as the gravamen was supposed to arise upon a breach of public duty, or the breach of mere express promise. Each form has its advantages and disadvantages. If assumpsit is brought, or the action be laid as arising upon contract, it may be abated for the non-joinder of proper parties ; but it survives against the personal representatives, and the common counts, on a general undertaking may be joined in the declaration. If the action be laid as arising ex delicto, and founded on the custom, the suit does not abate for the non-joinder of all the proper parties; and, in a proper case, a count in the nature of trover may be joined.1

In an action against six defendants, as proprietors of a steamboat, in which they were charged as common carriers, for the loss of property put on board for transportation, and the gravamen was stated to have arisen from a breach of duty, it was held, that a plea in abatement for the non-jcinder of other proprietors, who were jointly liable with the defendants, was bad; that the action being several as well as joint, the demurrer to the plea in abatement was well taken.

§ 659. An action solely upon the custom, is an action of tort, in which all or any number of the owners of a vessel, coach or other kind of conveyance, used by common carriers, may be sued, and on a verdict against all or a part only of those against whom the action is brought, judgment may be rendered. The plaintiff has his choice of remedies, either to bring an action in the nature of assumpsit or case; but when one or the other form of action is adopted, it will be governed by its own rules. If the plaintiff, as is sometimes done, states the custom, and also relies on an undertaking, general or special, the action, though it may be said to be ex delicto quasi ex contractu, is in reality founded on the contract, and is treated as such.3

In an action on the case founded on the custom, the complaint alleges that the defendant was a common carrier of goods and chattels on a certain route, and that plaintiff's goods were delivered to him for carriage to a given place for a certain freight and reward, whereby it became the defendant's duty to carry and deliver the goods safely at the place of destination, and concludes by alleging a breach of duty to

1 Orange Bank v. Brown, 13 Wend. R., 158; Boson v. Sandford, 2 Show, 478; 1 Show., 29, 101; 3 Mod., 321; 2 Salk., 440.

23 Wend. R., 158.

* Max v. Roberts, 12 East R., 89, decided in 1810.

the plaintiff's damage. The plea or answer is, not guilty of the breach of duty.1 A breach of this duty is a breach of the law; and for this breach, an action lies, founded on the common law, which action wants not the aid of a contract to support it.

It is not necessary in such an action to prove a contract, nor even to allege a consideration, for the negligence or breach of duty is the cause of action, and not the assumpsit. It is sufficient, therefore, to establish by pleading and proof, that the defendant received the plaintiff's goods as a common carrier for transportation, and has been guilty of a breach of his duty, resulting in damages to the owner of them.3 Without any agreement whatever, the bare delivery of the goods to the carrier, imposes upon him the obligation to convey and deliver them according to the directions which he receives; and a neglect to perform his duty and comply with such directions subjects him to an action. For the law pronounces his failure in duty a tort or misfeasance, for which he must answer in damages to the party injured.

§ 660. There is this further convenience attending an action on the case; it is enough that the proof conforms substantially to the averments in the complaint; 5 while in an action on a contract the proof must conform closely to the allegations, and a variance will be extremely inconvenient, if not fatal.

It has also been customary, and in many cases found quite convenient, to join in this action with counts against the defendant as a common carrier, a count in trover. Trover was held to lic where the goods had been lost to the owner by the act of the carrier, though without any intentional wrong; as where they had been delivered to the wrong person by mistake, or on a forged order, or had been tortiously converted by him. It did not lie for the mere omission of the carrier; as where the property has been stolen, or lost through his negligence, and so could not be delivered to the owner. Mere nonfeasance does not work a conver

1 Bretherton v. Wood, 5 Brod. and Bing. R., 54, decided in 1821; Jeremy on Car., 117; McCall v. Forsyth, 4 Watts and Serg. (Penn.) R., 179; Smith v. Seward, 3 Barr. R., 342.

2 Bastard v. Bastard, 2 Show., 81; Jeremy on Car., 5; 5 Brod. and Bing. R., 54.

3 Weed v. The S. and S. Railroad Co., 19 Wend. R., 540.

Coggs v. Bernard, 2 Ld. Raym., 909; see also the old forms of a declaration

in case against a common carrier, 1 Chitty Pl., 248.

Cook v. The Champlain Trans. Co., 1 Denio R., 91; 8 Mees. and Welab, R., 443.

6 19 Wend. R., 540.

Hawkins v. Hoffman, 6 Hill R., 586.

• Peake Cas., 49; 2 Barn. and Ald., 702; 4 Bing. R., 476.

sion of the property; and hence, although the owner might maintain an action of another kind, it was ruled that he could not maintain trover.1 A recovery on a count in trover could be had only where the defendant had been guilty of an act of conversion. The goods being in his possession, evidence of a demand and refusal is prima facie proof of conversion. This proof may be overcome by any testimony that shows he did not in fact convert them.

§ 661. It is not easy to determine how far, under the Code of Procedure in this State, causes of action formerly capable of being joined, may now be united in the same complaint. In general terms, it may be stated that the plaintiff cannot, in an action to recover personal property, allege a cause of action for injury to property, arising through his neglect with or without force. In an action for the recovery of goods and chattels he may claim "damages for the withholding thereof;" and he may include under that term such damages as have resulted from the negligent manner in which the defendant has stored or transported them.3

But the form of the action does not alter the transaction, nor essentially vary the principles applicable to the carrier's liability. Under the old practice, the true test, whether counts might be joined in the same action, was to consider whether there might be the same judgment in both or all of them.4

§ 662. Action on the Contract. An action of assumpsit lies upon all implied contracts as well as upon all written contracts not under seal, and is based upon the promise or undertaking of the party defendant. It is the usual and well defined remedy for the breach of a contract, whether expressed in terms or raised by implication of law.

Every person who undertakes to carry, for a compensation, the goods of all persons indifferently, is, as to the liability imposed, to be considered a common carrier. There is an implied undertaking on his part to carry the goods safely, and on the part of the owner to pay a reasonable compensation. No special agreement is necessary to enable the owner to maintain assumpsit against the carrier for the breach of his duty, nor to enable the carrier to maintain assumpsit for his compensation. There is, therefore, a perfect contract implied between the carrier and his em

1 Ross v. Johnson, 5 Burr., 2525; Dewell v. Maxon, 1 Taunton R., 381; 4 Esp. R., 157; Buller, N. P., 45; 1 Campb. R., 409; 2 Ld. Raym., 792; Jeremy on Car., 120.

2 Dwight v. Brewster, 1 Pick. R., 50; 6 Hill R., 588.

Code of Procedure, § 167; Smith v. Orser, 43 Barb., 187, may recover

damages resulting from the same transaction.

Dickson v. Clipton, 2 Wils., 319; Covett v. Radnidge, 3 East R., 63.