The Express.
London, England, 1860-05-07 00:00:00

901:TAT OF QIIMENI24 BENCH.-MAy 5.

Sittings la Basoo.--(-Before the Lord Chief Justice Mr.
Jusokbers.)stice Crompton, Mr. Justice Hill, and Mr. Justice
Ba
TATRIR r. TYR GREAT wEsTERN RAILWAY COMPANY.

This was a rule to set aside the master's taxation of
costs obtained on the 22nd of last month on the motion of
Digby, for the company.
The case is reportable as evincing of what essential impor-
tance it still is to pay strict observance to the forms of ac-
tions, notwithstan&ng the sweeping amendments of recent
yel/B.
t was an action against the company for the non-delivery
of certain goods at larringdon, when the company allowed
judgment to go against them by default, the damages being
afterwards assessed at 111. ss. The question raised before
Mr. Justice Blackburn at chambers, and afterwards referred
by him to the court, was whether, inasmuch as the plaintiff
recovered lees than 20f., he was entitled to his costa, the
master having decided that be was.
The point at issue turned upon the exception to • plain-
tiro right to recover costa created by the 11th section of the
Comity Courts Act, the 13th and 14th of Vic., cap. 61, and
which, in effect, declared that the plaintiff was deprived
of his costa if he sued in • superior court for • demand
within the jurisdiction of the county court, and did not re-
cover more than 201. in as action on contract, or 51. in an
action of tort.

Mr. Macnainars appeared in support of the master's
order, and contended for the plaintiff's right to recover his
mete. The declaration was in case : it charged the defend.
ants, as common carriers, with negligence and carelessness
in the exercise of their duties as such, and by reason of
which carelessness and negligence a bale of goods belonging
to the plaintiff was lost. There was no doubt the plaintiff
might have relied upon the implied contract, and declared in
assumpsit, but that was not necessary. His right of action
arose independently of the implied contract and out of the old
common law liability of the defendants as bailees of goods.
Formerly it was always the practice in such cases to de-
clare in tort for breach of duty founded upon the common
law obligation.
Mr. Digby argued on behalf of the company that the
verdict here was for a breach of contract. According to the
doctrine laid down by the Court of Exchequer, wherever
en action was substantially fora breach of contract—no
matter what the form in which it was brought—the rule as
to costs in aasumpait must prevail.
The Lord Chief Justice, in delivering judgment that the
rule must be discharged, expressed his regret that such an
anomaly should still prevail as that a plaintiff should be
entitled or diseutitled to costa according to the per-
ticular form in which he Mimed his complaint.
In the present instance, although it might be true that
the foundation of the duty imposed upon the deleudsnts lay
in the contract they had entered into with the plaintiff,
yet it was well established that *duty attached to them in
their capacity of carriers, independently of that more Mime.
die** arising from the contract with the plaintiff. Inas-
much therefore as the wording of the act of parliament sod
the form of the plaintiff's declaration left them no choice,
their judgment must be for the plaintiff, and the rule must
be discharged.
The importance of this decision to the plaintiff will be
ma when it is stated that the costs of the writ of inquiry
were over 401., while his damages were only assessed at
111. be