Laws

Advance- ment of a cause Post Date: Sat, 26 Jul 2008 4:06:03 +0000
And where a party is duly notified of the time and place set for the trial of the cause, and fails to appear or object, he cannot, on appeal, complain because the cause was tried out of its proper orde R" Crosby v Kiest, 36 111 App 425 Appeal from Justic e The rule of the court in Illinois, that no cause shall be noticed for trial on the short cause calendar until the same is at issue, has been held not to apply to appeals from justices, because on such ap- peals there are no written pleading S Vallens v Hopkins, 51 111 App 337 Short Cause CalendaRIt is not an abuse of discretion, after more than an hour has been consumed, to continue a case tried on the short cause calen- dar, especially if the defense has been unduly protracte d Thorn v Hess, 51 111 App 274. Indiana Advancement. Advance- ment of a cause on the calendar is not a matter of right, under Ind Rev Stat1881, 653, which invests the court with a discretionary power of changing the order of causes, but pro- vides they shall otherwise be heard in the order in which transcripts are file d Parker v State, 132 Ind 419 Texa S Tex Rev Stat, art S 1181, 1182, 1287, 3073, provides that cases shall be placed on the general and jury dockets and tried in the order in which the petitions are filed, unless for good cause shown the court other- wise direct S Unless shown that in- jury resulted therefrom, it was held not reversible error to place a cause on the jury docket and try it in ad- vance of a cause previously filed and preceding it on the general docket.

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Raab v Albright (Iowa, 1894) Post Date: Sat, 26 Jul 2008 3:54:52 +0000
Missouri Pac RCo v Shuford, 72 Tex 165 Cause Tried in Advance of Its OrdeRWhere a continuance is requested for the want of testimony of certain witnesses in another county, to whom interrogatories were filed February 15, and commissions were issued February 22, the action having been brought January 21 there being no application for a postpone- ment to a later day in the term, and it not appearing that evidence would have been obtained in time had the cause been tried in its order a judgment will not be reversed because the action was tried in advance of its regular ordeRMissouri Pac RCo v Shuford, 72 Tex 165 Title to Offic e It is not an abuse of certain circumstances, but denying the same right to the defend- ant, is not unconstitutional, as being unequal, partial, or special legislatio N 1 3 Presumption and Waiver Presumptio N Counsel have a right to rely upon the presumption that the causes upon the calendar will be tried in their regular order, and to act upon that belief in calculating how long they will have to prepare for tria L 2 WaiveRThe voluntary appearance and participation in a trial, without objection, waives the objection that the cause was called upon the short cause instead of the regular calendaR3 4 Remedy for Trial out of OrdeRAn exception should be taken to the trial of a cause out of its order on the calendar, in the absence of a party, by a motion for a new trial, and embodying the motion and the grounds therefor in a bill of exception S 4 Appeal S An order directing a cause to be placed upon the calendar for a specified day is not appealabl e 5 VI I TBANSFEE TO ANOTHER CALENDAR 1 Generall Y When- ever a cause is upon the wrong calendar, as upon the law calendar when it should be upon the equity, or on the motion calendar when it should be on the issue, it will not be dismissed from court, but will be transferred to the right calendaR6 discretion to advance a cause brought to test the title to an office, there being a statute that such a cause " shall be speedily trie d" Hunnicutt v State, 75 Tex 233 Advanced by CONSENT On motion of defendant in error and with consent of plaintiff a cause may be advanced, under a statute providing that pre- cedence may be granted to such cases as the court, by order or rule, may di- re Ct Phoenix F In S Co v Cain (Tex Civ App, 1893), 21 S W Rep 709 1 Louisville, etc, RCo v Wallace, 136 111 87 2 Belmont v Erie RCo, 52 Barb ( N Y)i 3 7- Conversation with the Court. Where, under a new assignment of the docket, made because of a greater dispatch of business than was anticipated, a cause is reached, its trial is not error, al- though the attorney for one of the parties is absent, having been in- formed by the court, in a friendly con- versation, that the cause would prob- ably not be reache d Lincoln v Staley, 32 Neb 63 But see Maloney v Hunt, 29 Mo App 379 3 Jenson v Fricke, 133 111 171 4 Reiman v Ater, 88 111 299 5 Schermerhorn v Carter, 8 N Y Wkl Y Di g 383 6 Harris v Lowe, 81 Ga 676; Rid- dle v Beattie, 77 Iowa 168; Galliers v Peppers, 76 Iowa 521; McLeod v Tisdale, 57 Ark 352 Iowa Under Iowa Code, 2516, providing that, where wrong proceed- ings have been adopted, the defendant may have the cause transferred to the right docket or calendar before the filing of his answer, the defendant has a right to a ruling upon his motion to transfer before he files his answeREllis v Butler, 78 Iowa 632 KentucKy The Ky Civ Code, 12, provides that, upon the trial of equi- table actions, issues upon which the party is entitled to a jury trial may be transferred to the ordinary docket, but that either party may require every equitable issue to be disposed of before the transfeROn an action by an attorney to enforce a lien for his services against the subject-matter of the litigation, the defense being pay- ment, the action must be transferred to the ordinary docket, that the ques- tion of payment may be determined by the jur Y Hill v Phillips, 87 Ky 169 New York Ground for Placing upon Special Circuit CalendaRIn actions for fraud and deceit the bare fact that " a cause has been shorn of every ele- ment upon which the plaintiff can hope 2 Notice of Motio N Where notice is required of a motion to transfer a cause to another calendar, such notice must be given to all parties who answer by different attorney S 1 3 WaiveRAn error in placing an action upon the wrong cal- endar is waived by a failure to move for its transfer to the proper one, or proceeding to trial without objectio N 2 VII I ABANDONMENT OF CAUSE O N So long as a cause remains undisposed of it is properly on the calendar, and should remain thereon until final judgment ; 3 but a suit may be discontinued by a gap or chasm in the proceedings, occurring after its commence- ment, provided the interruption be not the result of some omis- sion of the clerk of the court or other ministerial officeR4 I X STKIKING FROM THE CALENDAR 1 Generall Y A cause will be stricken from the calendar of a term held before the cause is returnable ; 5 or when no notice, when required, has been given ; 6 or when the proper papers are not before the court ; 7 or, in the for success," is no ground for placing the same upon the special circuit cal- endaRSupreme Ct, s P T 1879; Dono- hoe z/Wood, i N Y Month L Bul L 20 No Issue, no TransfeRWhere there is no issue to be determined, no trans- fer will be mad e Adams v Roberts, 62 How Pr ( N Y Supreme Ct) 253, I Civ Pro Rep ( N Y) 204 Concurrent Jurisdictio N Where a court of law is vested with concurrent jurisdiction with a court of equity over the appointment of a receiver, if the plaintiff wishes a cause transferred to the equity side of the docket he must make a motion to that effect at the time of his application for the ap- pointment of a receiver and before a court of law makes the appointment. Raab v Albright (Iowa, 1894), 61 N W Rep 402 1 Seaman v McReynolds, 40 N Y SupeRCt 545 2 Mundy v Collier, 52 Ark 126; Burlington Nat Bank v Delahaye, 82 Iowa 34 Issues Change d The defendant does not waive an error in transferring a cause where the plaintiff brings an action at law and subsequently so changes the issues that upon his ap- plication the court transfers the cause to the equity side of the docket, the defendant joining issue in equit Y Raab v Albright (Iowa, 1894), 61 N W Rep 402 See VI I I, supr A 3 State v Templin, 122 Ind 235 4 Ex p Garlan d 42 Ala 564; .

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Price (Supreme Ct), 51 Post Date: Sat, 26 Jul 2008 3:36:08 +0000
* p State, 71 Ala 367; Terry v Briggs, 12 Cus H (Mas S) 319; Baltimore, etc, RCo v Eggers (Ind, 1894), 38 N E Rep 466 No Step for Two Year S When a cause has been dropped from the cal- endar with permission to reinstate it if necessary, and no step is taken in the case for two years afterwards, the cause is abandone d Drinkard v State, 20 Ala 9 Delay of the Court. Under a condi- tional order for a change of venue, a delay of several years in having the cause docketed in the county to which change is taken, such delay being caused by the failure of the court to complete the order after direction of counsel, does not work a discontinu- anc e Ex p Remson, 31 Ala 270 5 Cunningham v Conklin( N Mex, 1893), 34 Pac Rep 43 6 Mead v Billings, 43 Min N 239 Return on Citatio N In Poole v Mueller (Tex Civ App, 1894), 26 S W Rep 739, the case was stricken from the calendar, in the absence of any appearance fordefendants in error, because the return on the citation in error did not show that the service was made upon the attorney in perso N 7 Conditiona L Waite v F g Kal- denberg Co (Supreme Ct), 51 N Y St Rep 937 This case was stricken from the calendar, with leave to put upon the new calendar and submit when the proper papers were printe d Judgment Roll and Inde X In Reid v New York (Supreme Ct), 50 N Y St Rep 758, the case was stricken from the calendar on appeal because no judgment roll had v een printed in the appellate court, when the record is not properly certified, 1 or the want of such certificate is' not cured by stipulation of the partie S 2 2 Motion, when Mad e A motion to strike a cause from the calendar is of a dilatory nature, and must be seasonably mad e After a full appearance it will not be grante d 3 3 WaiveRBut the right to have a cause stricken from the calendar is not waived by participating in the trial after the court has refused a motion to strike it off 4 4 Remedy for Refusa L The remedy, if the court refuses to strike from the calendar a cause wrongfully placed thereon, is an appea L 5 X REINSTATEMENT AND RESTORATIO N The court does not lose jurisdiction because a cause has been omitted from the docket by the cler K 6 Lapse of Ti Me It may reinstate a cause on motion or by supple- mental petition after due notice has been given to the proper partie S The reinstatement of a cause is a matter resting in the papers, and the case contained no index as required by the rule S See also Raymond v Richmond, 76 N Y 106 1 People v Colletti (Supreme Ct), 31 N Y St Rep 255 Illinoi S In an appeal from a justice to the Circuit Court, where the tran- script has been filed in that court and the appellee has entered his appear- ance, given notice, and had the case transferred to the short cause cal- endar, the cause is pending and at issue, within the meaning of the statute and the rules of practice in Illinois, and will not be stricken from the short cause calendaRArmstrong v Crilly (111, 1894), 38 N E Rep 936 2 Crawford^. Price (Supreme Ct), 51 N Y St Rep 927 3 Metropolitan L In S Co v Broach, 31 111 App 496 Dela Y It will not be granted for an irregularity in serving the notice to place an appeal from a judgment in a justice's court on the short cause calendar, where such motion is made a month and a half thereafter and not until the cause is reached for tria L Johnston v Brown, 51 111 App 549 Old Calendar Still in Us e A motion to strike a cause from the list of causes set for trial, taken from a calendar prepared for a previous term but still n use, no new calendar having been prepared, was denied in Anderson v JlcCormick, 129 111 308 Moving Preference after Motion to Strik e In Gorton v Bailey, 46 Wi S 633, the cause had been placed upon the calendar without being properly noticed, and the defendant, after de- nial of his motion to strike it off on that ground, moved its preference for trial, and went to trial on the merit S It was held that upon an appeal from the judgment he could not avail him- self of the want of proper notice, in the absence of evidence that he was in fact prejudiced thereb Y Irregular Notice Waive d A case ir- regularly noticed for trial will be con- sidered as standing regularly for trial if no motion to strike it from the calendar is mad e Cook v Perry, 43 Mich 623; People v Wayne Circuit Judge, 35 Mich 498 4 Mead v Billings, 40 Min N 305 In Michigan it is held that the or- derly conduct of the business and the practice of the court require that cases not properly on the docket for trial should be brought to the attention of the court on the first day of the term; and that it is inconsistent for a party making such claim to wait until the case is reached, a jury impaneled, and a witness sworn, before raising the objectio N Peninsular Stove Co v Osmun, 73 Mich 570 5 People v Carson (Supreme Ct), 29 N Y Supp 619 In this case Dwight, ].

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2 1 Evans v Mott Post Date: Sat, 26 Jul 2008 3:19:13 +0000
, said, " The plaintiffs have a right to have practice settle d" 6 Farmers' College v Cary, 35 Ohio St 648 See Abandonment of Cause on, supr A sound discretion of the court, and the mere lapse of time is not sufficient to prevent the exercise of that discretio N 1 Waiver of Regularity of Reinstatement. Participation in subsequent proceedings without objection waives the irregularity and want of notice of reinstatement. 2 1 Evans v Mott, 7 Port (Ala) 92; Tibbs v Allen, 29 111 535; Farmers' College v Gary, 35 Ohio St 648 Notice of Restoratio N Where a case has been dropped from the docket and afterwards restored and put at issue by the filing of an answer, de- fendant is not entitled to a notice of restoration of the caus e McKin- brough v Castle, 19 La An N 128; Claussen v Johnson, 32 S Car 86 After Withdrawing a JuroRIn New York a plaintiff who has withdrawn a juror and unsuccessfully moved for leave to amend his pleading is entitled to have his action reinstated upon the calendar for tria L Sleeman v Hotch- kiss (Supreme Ct), 41 N Y St Rep Restoring and Setting for Day Cer- tai N A motion at special term to have a case restored and set down for a day certain is a different motion from that to restore a marked- down case to the day calendar, and it may be made and entertained in the discretion of the special term without leave previously obtaine d Nichols v McLean, 12 N Y Wkl Y Di g 461 2 Stinnett v Wilson, 19 111 App 38 4s to Captions for the Variotis Pleadings and Instruments, see the par- ticular title S I CLASSIFICATION OF ACTIONS AGAINST CARRIER S The usual causes of action against common carriers are : first, for refusal to carry ; second, for loss or injury to the consignment during trans- portation ; third, for delay in transportation ; fourth, for negli- gence or misfeasance in delivery over after the transportation has been completed ; fifth, for excessive and extortionate charges for carriag e I I ACTIONS FOR REFUSAL TO CARRY 1 Nature and Form of Actio N The cause of action against a common carrier for a refusal to receive and transport merchandise is based on its general duty to serve the public, and is therefore ex delicto and not ex contract N At Common La W Case is the form of action to recover for inju- ries resulting from such refusa L 1 1 Pickford v Grand Junction Rgovernment, plaintiff cannot recover Action on the Contra Ct If, however, there is a contract to carry, and a breach thereof consisting in a refusal to carry or to furnish means of transportation, an action may, of course, be brought on the contra Ct 1 Mandamu S It has been held that mandamus will not lie to com- pel a common carrier to carry property under its common-law liability, on the ground that an action for damages may be main- tained for its refusal to do so, and that such action furnishes an adequate remed Y 2 On the other hand, there are cases in which this remedy has been allowe d 3 2 Parties plaintiff In actions for refusal to carry, the con- signor or owner is the proper party to su e 4 Defendant Where suit is brought against a railroad company, which operates another road under lease, for refusal to receive goods and transport them over the leased line, the lessor need not be made a party Defendant 5 pending suit.

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It need not be alleged Post Date: Sat, 26 Jul 2008 3:03:45 +0000
Illinois Cent RCo v Phelps, 4 111 App 238 When but One Cause of Action Exist S Tenders by different persons acting as agents of plaintiff, at different times and places, of separate lots of grain for transportation, all making the quantity refused to be transported, constitute but one cause of action for the refusal to transport the whole quantit Y Cobb v Illinois Cent RCo, 38 Iowa 601 Consolidation of Actions Discretion of Court. Plaintiff brought two suits against a railroad company one to re- cover damages for a failure to receive and ship lumber, the other to recover for a failure to receive and ship cross- ties at a different ti Me Defendant moved to consolidate the two suits, and to dismiss on the ground that the amounts when combined would ex- ceed the jurisdiction of the court, which the court refuse d It was held that the causes of action were separate, and that the two actions could be maintained, and the discretion of the trial court in consolidating or refus- ing to consolidate suits will not be reversed unless there is a clear abuse of such discretio N Texas, etc, RCo v Hays, 2 Tex App Civ Ca S , 1 Pittsburgh RCo v Hays, 49 Ind 207; Texas Pac RCo v Nicholson, 61 Tex 491 See also Northwestern Fuel Co v Burlington, etc, RCo, 20 Fed Rep 712; Pittsburgh, etc, RCo v Hollowell, 65 Ind 188 2 People v Babcock, 16 Hun ( N Y) 313; People v New York, etc, RCo, 22 Hun ( N Y) 533 3 Mandamus is the proper remedy to compel a carrier to accept, carry, and deliver to a particular elevator whatever grain may be consigned to it upon the line of its road, the court being of the opinion that the plaintiffs had no adequate remedy in any other wa Y Chicago, etc, RCo v People, 56 111 365 See also People v Chi- cago, etc, RCo, 55 111 95 Where Refusal to Carry Affects Public Generall Y Where a carrier's neglect of duty to transport affects the public generally, and not merely an individ- ual shipper, it may be compelled by mandamus, in an action brought by the attorney-general, to exercise its duties as a common carrieRPeople v New York Cent, etc, RCo, 28 Hun ( N Y) 543- 4 Lafaye v Harris, 13 La An N 553 See also Pittsburgh, etc, RCo v Morton, 61 Ind 540; Pittsburgh, etc, RCo v Racer, 5 Ind App 209; Cobb v Illinois Cent RCo, 38 Iowa 603 5 Lamar v Russell, 77 Ga 307 Defendants Suit in Ber N For the breach of a contract, for the future carriage of goods upon a particular boat or vessel, between the owner of the goods and the owner of the boat or vessel, the breach charged consist- ing in a refusal to carry, an action cannot be sustained against said boat or vessel by name, under the Water- craft Act of February 26, 1840, amended March 24, 1851 Canal Boat Montgomery v Kent, 20 Ohio 54 3 Declaration or Complaint Generall Y The declaration, petition, or complaint should show plaintiff's capacity to sue, as that he is the consignor or owner of the property which the carrier neglected or refused to carry; 1 that defendant is a common carrier for hire ; * that plaintiff requested defendant to carry the property, and was ready and willing to pay the customary freight charges; 3 that defendant neglected and refused to carry the propert Y 4 Tender of Freight. It need not be alleged that the plaintiff made tender of the money for the freight ; an averment of a readiness and willingness to pay is sufficient.

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223; Kirkman v Hargreaves, i Post Date: Sat, 26 Jul 2008 2:47:28 +0000
5 Means of Transportatio N Nor need it be alleged that the defendant had room and means of transportation when it was demande d As a common carrier is liable for refusal to carry, without 1 See Pittsburgh, etc, RCo v Morton, 61 Ind 540; Pittsburgh, etc, RCo v Racer, 5 Ind App 209; Cobb v Illinois Cent RCo, 38 Iowa 603 2 See Pickford v Grand Junction RCo, 8 M W 372; Pittsburgh, etc, RCo v Morton, 61 Ind 540; Pittsburgh, etc, RCo v Racer, 5 Ind App 209; Cobb v Illinois Cent RCo, 38 Iowa 604 3 See Pickford v Grand Junction RCo, 8 M W 372; Pittsburgh, etc, RCo v Morton, 61 Ind 540; Pittsburgh, etc, RCo v Racer, 5 Ind App 209 4 See Pickford v Grand Junction RCo, 8 M W 372; Pittsburgh, etc, RCo v Morton, 61 Ind 540; Pittsburgh, etc, RCo v Racer, 5 Ind App 209 5 Pickford v Grand Junction RCo, 8 M W 372, 9 Dow L p C 766, 2 Rail W Ca S 592, 5 JuR731; Texas, etc, RCo v Hayes, 2 Tex App Civ Ca S, 391; Central, etc, RCo v Morris, 68 Tex 49, 28 A M Eng RCa S 50 Reason for Rul e The reason for the rule that an allegation of tender is un- necessary is well stated in Pickford v Grand Junction RCo, 8 M W 372, in which the court, by Parke,B, says: " The court think that this is not like the case of a strictly legal ten- der, 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, in which case the tender stands in the place of payment, and is in fact a pay- ment, so far as it is in the power of the party tendering to make it one, but which remains incomplete only because the party to whom the money is offered refuses to accept it. Such a tender we consider to be altogether unnecessary in the present case; 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 re- ceive 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 good S The case of Rawson v John- son, I East 203, clearly shows that whenever a duty is cast on a party in consequence of a contemporaneous act of payment to be done by an- other, it is sufficient if the latter pay, or be ready to pay, the money, when the other is ready to undertake the dut Y Here the acts to be done by the plaintiffs and defendants are altogether contemporaneou S The money is not required to be paid down by the plaintiffs, until the carrier receives the goods, which he is bound to carr Y" Aider by Verdi Ct Plaintiff brought suit on a contract to carry cattle, for refusal to carry; and the declaration alleged that for certain hire or reward, to be thereupon paid by the plaintiff to the defendant, the latter agreed to carry said stoc K It was held that a reasonable construction of the con- tract was that the freight was to be paid at the end of the carriage, and that a verdict for plaintiff should not be arrested because the declara- tion did not aver a readiness to pay the charges at the time the contract of carriage was mad e Waterman v Vermont Cent RCo, 25 N Y 707 Actions for Loss or Injur Y CARRIER S Nature and Form of Actio N reasonable excuse, it is for the carrier to show an excuse ; and what the plaintiff cannot be required to prove he should not be obliged to alleg e 1 Point of Destinatio N If the action is based on a continuous refusal and withholding of means for transportation, and not on a refusal to carry any specific lot of merchandise, no averment as to the point of destination is necessar Y 2 Basis of Damage S In alleging a basis for damages caused by a continuous refusal to transport, it is sufficient to charge what could have been realized from sales if transportation had been furnished, and the resulting loss, and to state specifically the expenses incident to its detentio N 3 4 Ple A A plea to an action" for refusal to transport, which merely alleges that plaintiff, on defendant's request to be informed as to the contents of the consignment, refused to give the informa- tion, and which does not allege any reason why these inquiries were made, presents no defens e 4 II I ACTIONS FOE Loss OR INJURY 1 Nature and Form of Action A UNDER EARLY ENGLISH PRACTIC e The next cause of action to be considered, and the one which is most fruitful of litigation against common carriers, is for loss of or injury to a consignment during transportatio N From the earliest period in the common- law practice, an action on the case, based on a breach of the carrier's duty to the public, might be maintained to recover for such loss or injur Y 5 Furthermore, it is believed, this was the 1 Pittsburgh, etc, RCo z Racer, 4 Crouch v London, etc, RCo, 5 Ind App 209 25 Eng L E Q 287 68 Tex 49, in which the court says, "Where there is a public employ- that in an ordinary case such an alle- ment from which arises a common- gation might be necessary and proper, law duty, an action may be brought but that, under the circumstances of in tort, although the breach of duty the case at bar, the plaintiffs could assigned is the doing or not doing of make no contracts to deliver, because something contrary to an agreement they could not get the necessary made in the course of such employ- transportation^ and hence could not ment, by the party on whom such gen- have averred the points to which their eral duty is impose d" Southern Ex- stock was to be carrie d press Co v McVeigh, 20 Gratt ( Va) only form of action which would lie prior to the year 1750; * and the reason for this was -that, under the strict principles of the common law, common carriers were considered the agents and servants of the public, and were bound to a measure of duty to the public entirely distinct from that arising on contra Ct 8 In 1750 the first departure from the long-established practice of declaring in tort occurre d Goods delivered to a common car- rier were injured in transportation, and the plaintiff, instead of declaring in tort on the custom of the realm, declared in assumpsit on the undertaking to carry and deliver safely, and alleged as a breach of the undertaking that the goods were damaged by defendant's negligenc e 3 b ACTION EITHER EX DELICTO OR EX CONTRACTU AT COM- MON LA W The most exhaustive research of the authorities will show that the precedent for allowing actions of assumpsit in this class of cases has seldom or never been disapproved ; and it is now a well-established rule that, at common law, the party injured may, at his option, bring assumpsit, counting on the nonperformance of the agreement which the carrier made with him ; or he may bring case, and count upon the violation of the public duty which the defendant aver S 4 the proper form of action to recover for the loss of good S Ross v John- son, 5 BurR2825; Owen v Lewin, i Vent. 223; Kirkman v Hargreaves, i Se L N p (loth e d) 411; Anonymous, 2 Sal K 665; Bowlin v Nye, 10 Cus H (Mas S) 416 1 Ansell -v Waterhouse, 2 Chit Rep i, 18 E C L 227 2 A M Eng Enc Y Law, tit CAR- RIER S See also Coggs v Bernard, I Smith Lea d Ca S (8th e d)36 g 3 Dale v Hall, I Wil S 281, in which it is said : " The law is very clear, in this case, for the plaintiff ; the declara- tion upon the custom of the realm is the same in effect with the present declaration: in the old forms, it is that the defendant suscepit, etc, which shows that it is ex .

Autor of the post: Undefined

1 (i) Introductory Post Date: Sat, 26 Jul 2008 2:33:19 +0000
contract U In the present case the promise to carry safely need not be proved; the law raises it. The breach is very right that he did not deliver them safely, but so negligently kept them that they were spoile d" In Ansell v Waterhouse, 2 Chit Rep i, 18 E C L 227 [6 M S 385], it is said: " In all actions formerly against carriers, and that up till a very late time, it was usual to begin the declaration with an averment of the custo M * * * Declarations against carriers in tort are as old as the law, and continued till Dale v Hall, i Wil S 281, when the practice of de- claring in assumpsit succeeded; but this practice does not supersede the othe R" 4 American Case S Orange Bank v Brown, 3 Wen d ( N Y) 158; Atlantic Mut In b Co v McLoon, 48 Barb ( N Y) 27; Lamb v Camden, etc, R, etc, Co, 2 Daly ( N Y) 454; Catlin v Adirondack Co, n Abb N Ca S ( N Y Ct App) 377; The Queen of the Pacific, 61 Fed Rep 213; Whitten- ton Mfg Co v Memphis, etc, Packet Co, 21 Fed Rep 896; The Grapeshot, 22 Fed Rep 123; The Samuel J Chris- tian, 16 Fed Rep 796; Saltonstall v Stockton, Taney De C (U S) n; Smith v Seward, 3 Pa St 342; St Louis, etc, RCo v Heath, 41 Ark 476 18 A M and Eng RCa S 557; Bal- timore, etc, RCo v Pumphrey, 59 Md 390, 9 A M Eng RCa S 331; Mississippi Cent RCo v Fort, 44 Mis S 423; Coles v Louisville, etc, RCo, 41 111 App 607; Wabash, etc, RCo v McCasland, n 111 App 491; Clark v St Louis, et C RCo, 64 Mo 446; School DiSt v Boston, etc, RCo, 102 Mas S 555 English Case S Ansell v Water- house, 6 M S 385, 2 Chit Rep i, 18 E C L 227; Tattan v Great Western RCo, 2 E L E L 844, 105 E C L C ACTION EITHER EX DELICTO OR EX CONTRACTU IN AD- MIRALT Y In admiralty, the shipper has likewise his election to sue either upon the contract of affreightment or in tort. 1 (i) Introductory Statement When one or the other form of action is adopted, it is governed by its own rules, and each form has its peculiar advantages and disadvantage S 2 (2) Actions ex DelictO Misjoinder or Nonjoinder of Partie S In the first place, the action in tort possesses this advantage over the action on contract, that the suit does not abate for nonjoinder of all the proper partie S 3 So also it will not abate where there is a mis- joinder of partie S 4 844; Richards v London, etc, RCo, 7 CB 839, 62 E C L 839; Powell v Layton, 2B p N R365; Flem- ing -v Manchester, etc, RCo, 4 Q b Div 81; Pozzi v Shipton, 8 A d E L 963, 35 E C L 574; Dickon v Clif- ton, 2 Wil S 319 Rule not Affected by Written Contra Ct A special contract between a common carrier by water and the shipper, that the vessel shall be complete on a given day, for taking the goods on board, and shall be stowed as full as shall be judged safe for the goods to go, and fixing the rates of freight, de- murrage, etc, will not preclude the shipper from suing in case, without referring to the contract, for an injury to the goods by the negligence of the master or unseaworthiness of the ves- se L Clark v Richards, i Con N 59 1 The Queen of the Pacific, 61 Fed Rep 213 2 Orange Bank v Brown, 3 Wen d ( N Y) 158 3 Orange Bank v Brown, 3 Wen d ( N Y) 160: Cabell v Vaughan, i Saun d 291 e; Boson v Sandford, 2 Sho W 446; Child v Sand, Cart H 294; Ansell v Waterhouse, 2 Chit Rep i, 18 E C L 227; Holsapple v Rome, etc, RCo, 86 N Y 275; 3 A M Eng RCa S 487 ; Jones v Pitcher, 3 Stew p (Ala) 135 Where an action on the case is brought against several defendants as joint owners of a ship, for loss of goods placed in their charge for ship- ment, it cannot be pleaded in abate- ment that there are other part owners who have not been joine d Mitchell S Tarbutt, 5 T R649 In an action against six persons 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, that there were fifty-four other proprietors who were really lia- ble, was ba d Orange Bank v Brown, 3 Wen d ( N Y) 158 4 Smith v Seward, 3 Pa St 343; Patton v Magrath, i Rice ( S Car) 162 ; Cabell v Vaughan, i Saun d 291 e ; Pozzi v Shipton, 8 A d E L 963, 35 E C L 574; Boson v Sandford, 2 Sho W 446 See also Bretherton v Wood, 3B B 54, 7 E C L 345; Govett v Radnidge, 3 East 69; Baker v Michigan, etc, RCo, 42 111 73; Jones v Pitcher, 3 Stew p (Ala) 135 Illustratio N The declaration stated that plaintiff delivered to defendants, and they accepted from him, goods to be carried for a certain reward; that it became their duty to take due care of the goods while they had charge of them, for the purpose aforesaid; that while they had charge of the goods they took such bad care of them that the goods were injure d The case was proved as to one defendant only, who was shown to be a common carrier, and a verdict was taken against him, and for the other Defendant Held, that the verdict was maintainabl e Pozzi v Shipto N 8 A d E L 963, 35 E C L 574 In Smith v Seward, 3 Pa St 342, which was an action on the case for the loss of horses delivered to a car- rier for ferriage, the court held that, as the declaration was in case, a ver- dict against one of the defendants and for the other was goo d Connecting Carrier S Where goods are shipped to pass over several con- Joinder of Case and TroveRAgain, where the action is laid in case, it is permissible to join a count in trover to a count in cas e 1 Exactness in Pleading S Finally, in declaring in case, so much exactness in pleading is not required as in an action of assump- sit.

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Rice v Shute, 5 BurR2611 Post Date: Sat, 26 Jul 2008 2:21:23 +0000
In declaring on a contract plaintiff must prove it as he has laid it, but in declaring on a tort it is not necessary to prove his whole cas e Though he fails in many of his particulars, yet if he proves so much of it as leaves him a good cause of action, he will be entitled to recoveR2 (3) Actions ex Contractll Action Possesses None of the Advantages of Action in Tort. Though this form of action possesses some advan- tages which the action in tort has not, on the other hand it has none of the advantages of the latter action enumerated in the foregoing section S 3 Thus in assumpsit for loss or injury to goods the plaintiff must sue all the joint contracting parties, and only the joint contracting parties, and a well-founded plea in abatement that there is a nonjoinder or misjoinder of parties defendant will be fatal to a recover Y 4 It is proper, however, to state in this connection that such defect in the declaration can only be taken advantage of by a plea in abatement, and is not good ground for nonsuit at the tria L 5 So also where the action is assumpsit, a necting lines, and a loss occurs, and the several carriers are sued in tort, a misjoinder of parties defendant can- not be set up, since a verdict of guilty may be found against one, and of acquittal against the other S Baker v Michigan, etc, RCo 42 111 73 1 Dickon -v Clifton, 2 Wil S 319; Wyld -v Pickford, 8 Mo N 443; Govett v Radnidge, 3 East 69; Dwight v Brewster, i Pic K (Mas S) 50 Test as to Joinder of Count S " The true test to try whether two counts can be joined * * * is to consider and see whether there be the same judgment in both, and not whether they both require the same plea; and wherever there is the same judgment in both I think they may well be joine d I own that in many books it is reported that trover and a count against a common carrier cannot be joined, but common experience is now to the contrar Y" Wilmot, CJ, in Dickon v Clifton, 2 Wil S 319 Illustratio N In Dwight v Brew- ster, i Pic K (Mas S) 50, the declara- tion contained three counts the first, in trover; the second, charging defend- ants as common carriers, and stating their undertaking to carry a package of banknotes for hire; the third, alleging an undertaking by defend- ants to carry the package for a re- ward, and charging them with negli- gence in the transportation, whereby the banknotes were loSt 2 Weed -v Saratoga, etc, RCo, 19 Wen d ( N Y) 534, citing Jones v Givin, Gil b Ca S in L E Q 185, 228, 229 3 Baylis v Lintott, L R, 8 C p 4 Rice v Shute, 5 BurR2611; Abbot v Smith, 2 W B L 947; Pozzi v Ship- ton, 8 A d E L 963, 35 E C L 574; Patton -v Magrath, i Rice ( S Car) 162 ; Mershon v Hobensack, 22 N J L 372; Smith v Seward, 3 Pa St 342; Jones v Pitcher, 3 Stew p (Ala) 135 5 Rice v Shute, 5 BurR2611; Abbot v Smith, 2 W B L 947; Mer- shon v Hobensack, 22 N J L 372; Jones v Pitcher, 3 Stew p (Ala) 135; Govett v Radnidge, 3 East 48 Waiver of Objection What Consti- tute S Failure to take advantage of a nonjoinder or a misjoinder by plea in abatement is deemed a waiver of the objection to the pleading on that account. Rice v Shute, 5 BurR2611 Taking Advantage of Nonjoinder by DemurreRWhen one of two or more carriers is sued for loss or injury to goods, if the facts disclosed in the complaint show that other carriers are jointly liable with the defendant as partners or otherwise, an objection to count in trover cannot be joined in the same declaration, because the pleas are different.

Autor of the post: Undefined

Crook, 44 Ala 469 Post Date: Sat, 26 Jul 2008 2:03:10 +0000
1 Survival of Action The action of assumpsit possesses the ad- vantage over the action on the case, that it survives and may be brought against the executor or administrator of the Defendant 3 Joining Common Money Count S So, too, by suing in assumpsit, plaintiff may join the common money counts, if he has other causes of action to which they are applicabl e 3 e DISTINCTION BETWEEN DECLARATIONS IN CASE AND IN ASSUMPSIT Introductor Y It has not always been easy to deter- mine, from an examination of the declaration, whether it was laid in assumpsit or in case ; and there has been some difference of opinion as to the features which distinguish the declarations in these two forms of actio N 4 The General Doctrine state d Where the gravamen of the declara- tion is solely for a breach of duty, and founded on the custom, the action is in tort ; 5 but if the cause of action as stated is for their nonjoinder must, under the Indiana statute, be taken by demur- rer, assigning that specially as the cause; otherwise it is waive d Balti- more, etc, RCo v McWhinney, 36 Ind 436 1 Coryton v Lithebye, 2 Saun d 117 f, 117 d A cause of action for detention of property cannot be joined with other causes of action founded on contra Ct Hoagland v Hannibal, etc, RCo, 39 Mo 451 A complaint in three counts the first, for killing cattle; the second, for killing swine ; and the third, for breach of a contract to carry cattle, consist- ing in an injury to them by reason of weak and insufficient cars is bad for misjoinder of causes of action, the first two counts being in tort, and the third in contra Ct Colwell v New York, etc, RCo, 9 How Pr ( N Y Supreme Ct) 311 2 Hambly v Trott, Cow P 375 3 Angell on Carriers, 435; i Chit Pldg S 115, 418; Hutchinson on Car R. of action, on the ordinary contract of carriage, for a breach of the duty to keep the goods safely, without loss by negligence, is founded in tort, and the declaration will be so construed unless the special features of the case show it to have been founded in con- tra Ct Whittenton Mfg Co v Mem- phis, etc, Packet Co, 21 Fed Rep 896; Tattan v Great Western RC O 2 E L E L 844, 105 E C L 844; Baylis v Lintott, L R, 8 C p 345; Pontifex v Midland RCo, 3 QB Div 23; Fleming v Manchester, etc, RCo, 4 QB Div 81; Bryant v Herbert, 3 C p Div 189; Foulkes v Metro- politan DiSt RCo, 4 C p Div 267 understand; but it is so considered, and a count in trover is joined with it; and yet, though the nonperformance of that which is originally contract may be made the subject of an action of tort, the foundation of that action must still be contra Ct" See also Dale v Hall, i Wil S 281 Compare Gossin v Williams, etc, R, etc, Co, 36 La An N 186 5 Wood v Milwaukee, etc, RCo, 32 Wi S 398; Conkey v Milwaukee, etc, RCo, 31 Wi S 619; Muschamp v Lancaster, etc, RCo, 8 M W 421; Collins v Bristol, etc, RCo, ir Exc H 790, i H N 517; Scott- horn v South Staffordshire RCo, 8 Exc H 341; Wilby v West Cornwall RCo, 2 H N 703; Mytton v Mid- land RCo, 4 H N 615; Coxon v Great Western RCo, 5 H N 274; Bristol, etc, RCo v Collins, 7 H L Ca S 194; Tattan v Great Western RCo, 2 E L E L 844, 105 E C L 844, Action ex Delicto Quasi ex Contract U So where a party states the cus- tom, and also relies on an undertaking, general or special, the action may be said to be ex delicto quasi ex contractu, but it is in reality founded on the contract, and is to be treated as suc H 2 Averments of Negligenc e And if the controlling facts set forth constitute a cause of action ex contractu, the mere presence of an averment of negligence does not make the action one ex delicto? Allegations Essential to Actions of Contra Ct A mere averment of a promise, or the use of the words " undertook " or " agreed," does not constitute the declaration a declaration on contra Ct It is necessary to allege not only a promise or undertaking, but also a g EFFECT OF STATUTE S Owing to the changes in forms of actions and pleadings made by statute both in England and in this country, the distinction between the two classes of actions discussed has, in a large measure, been obliterated, and is no longer regarded as of App 177; Kimball v Rutland, etc, RCo, 26 Vt 247 If there is a special contract varying the liability of the carrier, the action may properly be brought on the special contract and not on the gen- Where the relation is changed from common carriers to private carriers by special contract, the company, not being liable as common carriers, can- not be declared against as such, but the action must be on the contract or for a breach of duty arising out of the contra Ct Kimball v Rutland, etc, RCo, 26 Vt 247 2 In England the nonjoinder of a codefendart in assumpsit against com mon carriers can no longer be pleaded in Abatement Brown on Parties to Actions 156 The English Statut e ~By n Geo Iv and i W M Iv, C 68, 5, any one or more common carriers may be sued by his or their names only, and no action or suit for damages for loss or injury shall abate for the want of joining any coproprietor or copartneRIn Alabama a complaint in the form given in the Revised Code is sufficient to authorize a recovery, whether the cause of action be ex contractii or ex delict O Southern Express Co z'. Crook, 44 Ala 469 In Indiana, under the code abolish- ing the distinction between actions growing out of contract and actions in tort, causes of action growing out of the two may be unite d Cincinnati, etc, RCo v Harris, 61 Ind 290 In Massachusetts it is permissible to join a count in contract with a count in tort, where there is any doubt as to the legal effect of the facts relied on to sustain the actio N Mahon v Blake, 125 Mas S 477; Ailing v Boston, etc, RCo, 126 Mas S 121; Central Vermont RCo v Soper, 59 Fed Rep 879- In New York the misjoinder of par- ties defendant, in an action of contract for loss of property shipped, is not fatal to a recover Y Judgment may be rendered against such defendants only as are properly joine d Mclntosh v Ensign, 28 N Y 177, in which the court says: "The misjoinder of par- ties who are not jointly liable, in an action on a joint contract, would have been fatal to the plaintiff before the cod e Upon the facts which appeared at the trial the plaintiff would have been nonsuited, although the three defendants who were misjoined had not appeared, and even if they had been 'served with process and had suffered Default * * *.

Autor of the post: Undefined

Brill v Grand Trunk RCo Post Date: Sat, 26 Jul 2008 1:49:51 +0000
But the code, 136, 274, has abrogated this strict and technical rul e" ACTION S Before beginning a discussion of this question, which is of great importance and of considerable difficulty, it is proper to state the rule as to parties to actions generally, namely, that suit should be brought in the name of the party whose legal right has been affecte d b THE CONSIGNOR (i) Where Title does not Pass Generall Y It is a general rule that where title to the consignment remains in the consignor, he is the proper party to sue for loss or injury theret O 1 By Agreement of Partie S As where, by agreement between the con- signor and the consignee, the goods do not become the property of the latter, and he is at no risk concerning them until they actu- ally reach hi M 8 statute of Fraud S Or where title does not pass because the con- tract of sale of the goods shipped is bad for noncompliance with the statute of fraud S 3 1' Colorad O Denver, etc, RCo v Frame, 6 Colo382, 18 A M Eng RCa S 637 Indiana Law v Hatcher, 4 Blackf (Ind) 364- Massachusett S Sanford v Housa- tonic RCo, ii Cus H (Mas S) 155 Missour I Bergner v Chicago, etc, RCo, 13 Mo App 499 New York Price v Powell, 3 N Y 322; O'Neill v New York Cent, etc, RCo, 60 N Y 138 Illustration S The consignor of cot- ton who is the owner, is the party to sue the carrier for the loss of the cot- ton, and the consignee, who is a mere factor, may be a witness for hi M W A RCo v Kelly, i Head (Tenn) 158 By bill of lading the captain was to deliver goods for the consignor and in his name to the consigne e At the time of shipment the consignee had no property in the good S Held, that South Carolina Goodwyn v Doug- las, Cheves ( S Car) 174 Tennessee Turney v Wilson, 7 Yerg (Tenn) 340; W A RCo v Kelly, i Head (Tenn) 158; East Ten- nessee, etc, RCo -v Nelson, i Cold W (Tenn) 272 Texa S Missouri Pac RCo v Scott, 4 Tex Civ App 76; Houston, etc, RCo v Stewart, i Tex App Civ Ca S, 1246 Ver Mont Blumenthal v Brainerd, 38 Vt 402 Wisconsi N Congar v Galena, etc, RCo, 17 Wi S 477; Hooper v Chi- cago, etc, RCo, 27 Wi S 81 Englan d Sargent v Morris, 3B Ai d 277; Stockdale v Dunlop, 6 M W 224; Swain v Shepperd, I M Ro b 223; Brandt v Bowlby, 2B A d 932, 22 E C L 214; Duff v Budd, 6 Moore 469, 3B B 177, 7 E C L 399; Coates v Chaplin, 2 g d 552, 2 QB 483, 6 JuR1123; Steele v Grand Trunk RCo, 31 U C C p 260 damage done to the goods must be brought in the name of the consignor, although the consignee had insured the goods and advanced the premiums of insurance before the arrival |of the shi P Sargent v Morris, 3B Ai d 277 In an action against a carrier for the loss of a parcel of whalebone, it ap- pearing that the plaintiff (the con- signee) had agreed with A (the con- signor) to take such whalebone as the latter should send by the carrier, at a certain price, and the parcel having been so sent held, that the consignor (A) and not the plaintiff was the party to maintain the actio N Coombs v Bristol, etc, RCo, 3 H N 510, 27 L J Exc H 401 2 Madison, etc, RCo v White- sel, n Ind 55; Smith v Lewis, 3B Mo N (Ky) 229 3 Law v Hatcher, 4 Blackf (Ind) Instance S Goods exceeding ten pounds in price were verbally ordered of C No particular mode of carriage Conditional Sal e So also if goods are forwarded for sale on ap- proval, the consignor is the proper party plaintiff 1 Agreement to Deliver at a Particular Plac e And if the consignor has agreed to deliver at a particular place, the right of action for loss or injury is in him, for the reason that the goods are at his risk till delivere d 3 Eescission of Contract of Sal e If the contract of sale is rescinded by the consignee's refusal to receive the goods, the consignor, as the owner, may sue for failure to deliveR3 (2) Where Consignor Makes Contract of Shipment. Where the consignor makes the contract of shipment with the carrier, he may bring an action for loss or injury to the consignment, irre- spective of the question of ownershi P In such case the privity of contract between the consignor and the carrier is a sufficient foundation on which to base the actio N 4 Even where there is no was specified, nor was there any evi- dence of any particular course of deal- ing between C and the vende e C afterwards forwarded the goods by a carrieRThe goods were lost while in his custod Y Held, that C was the proper party to bring an action against for the loss of the goods, the property therein not having passed to the ven- de e Coates v Chaplin, 2 g d 552, 2 QB 483, 6 JuR1123 Where the plaintiffs assigned goods, according to an order received, to a person they did not know, and who afterwards appeared to be a swindler, but who got possession of them by the carrier's negligence held, that they might maintain an action against the carrier, as the property had not passed to the consigne e Duff v Budd, 6 Moore 469, 3B B 177, 7 E C L 399 And see Stephenson v Hart, 4 Bin g 476, I M p 357 1 Swain v Shepperd, i M Ro b 223 2 Missouri Pac RCo v Scott, 4 Tex Civ App 76; Steele v Grand Trunk RCo, 31 U C C p 260 Instance S Where there is no writ- ten contract, and no agreement be- tween the carrier and the consignor further than that the goods shall be shipped to a given point, and the con- signor is shown to be the owner before shipment, there is nothing to show a change of ownership, and suit is prop- erly brought by the consignoREast Line, etc, RCo v Hall, 64 Tex 620 Where the contract of sale is ex- ecutory, and the consignor is only to pay for the goods when delivered to him by a given day, at a particular place, the consignor is the owner of the goods and the proper party to sue the carrier if he fails to deliver the sa Me East Tennessee, etc, RCo v Nelson, i Cold W (Tenn) 272 3 Bergner v Chicago, etc, RCo, 13 Mo App 499 Withdrawal of Attempt to RescInd Plaintiff ordered certain coils of rope, but when they were tendered to him by the carrier, they were found to be un- satisfactory, and he directed them to be returned to the shipper; but before they reached the shipper he paid the price thereof Held, that he could maintain an action against the carrier for the loss thereof Ralph v Chicago, etc, RCo, 32 Wi S 177 4 Arkansa S Cantwell v Pacific Express Co, 58 Ark 487 Illinoi S Ohio, etc, RCo v Em- rich, 24 111 App 245; Great Western RCo v McComas, 33 111 185; Illinois Cent RCo v Schwartz, n 111 App 482; Stafford v Walter, 67 111 83; Illi- nois Cent RCo v Schwartz, 13 111 App 490; Northern Line Packet Co v Shearer, 61 111 263 Iowa Cobb v Illinois Cent RCo, 38 Iowa 601 Massachusett S Blanchard v Page, 8 Gray (Mas S) 295 Mississipp I Southern Express Co v Craft, 49 Mis S 491 Missour I Achison v Chicago, etc, RCo, 80 Mo 213; Davis v Jackson- ville S E Line (Mo, 1894), 28 S W Rep 965; Harvey v Terre Haute, etc, RCo, 74 Mo 538 New York Swift v Pacific Mail express contract of shipment between the carrier and the con- signor, and no bill of lading issued to the consignor, his right to Eastern RCo, which forwarded it to the plaintiff in Kent, and charged him for the carriage of their lin e Held, that though the property in the flour might not hnvc passed to the plaintiff under the statute of frauds, still, as he had contracted with the South-Eastern Co for its carriage, he could sue them for damage done to it in the transit over their lin e Mead v South-Eastern RCo, 18 W R- 735- Where a transportation company gives a shipping receipt for the trans- portation of goods, and they are lost, the person to whom the receipt is given may bring the action, although the property may belong to anotheRNorthern Line Packet Co v Shearer, 61 111 263 Where the shipper of goods has sold them to the consignee, of which fact the railway has knowledge, and with such knowledge contracts with the shipper to safely carry them, he can sue for a failure to safely carry, and the company cannot set up in de- fense the title of the consignee; and, having repaid the whole price to the consignee, the shipper may recover the value of the property by a subsequent offer to return it. Brill v Grand Trunk RCo, 20 U C C p 440 Where the shipper of goods guaran- tees the freight, and makes a special agreement to pay freight, he may sue for nondelivery of the goods to the consigne e Stafford v Walter, 67 111 83 One H being the owner of a trotting horse, delivered him to d to keep for one year, upon an agreement that d should have the exclusive manage- ment, charge, and control over him, with the privilege of trotting him at whatsoever place or places d might deem best, d and H dividing be- tween themselves the net profits of the trottin g H reserved to himself the rght to sell the horse at any time dur- ing the year upon making compensa- tion to d While this arrangement was in force, d made a contract for the transportation of the hors e Held, that d, and not H, was the proper party to sue for a violation of the con- tra Ct Harvey v Terre Haute, etc, RCo, 74 Mo'.

Autor of the post: Undefined

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