Campbell against Perkins, Rich, and Samuel and Nathaniel B. Ellison, 8 N.Y. 430

Taggart, J. The judgment in this cause so far as relates to the defendants Rich and Ellison, I think ought to be affirmed. The plaintiff" made his contract with Chase and Company to transport him and his goods and effects from New York to Buffalo. It was not material whether he was conveyed in a boat belonging to Chase & Co. or a boat charterd by them belonging to some other person. So far as concerns the plaintiff Chase & Co. were his carriers, and they alone are liable to him. He made no contract with the defendants. He neither employed nor paid them for transporting him or his effects to Buffalo.

The defendants contracted with Chase & Co., and are responsible to them if liable at all. ' This case is not within the principle of the case of Fenton v. The City of Dublin Steam Packet Company, (8 Adol. v.

Ellis, 835.) It was in that case that the defendants as owners of the steam boat were liable to the plaintiff for sinking his vessel by the steam boat; the defendants having chartered their steam boat to one Bails for six months at 20 pounds per week, the owners to keep her in good and sufficient order for the conveyance of goods, &c., to and from Newcastle and Goole or any other coasting station wdiich Bails might employ her in, Bails to pay all disbursements including harbor fees, pilotage, seamen’s and captain’s wages, and coal, oil, tallow, &c., for engines and to insure the vessel, the policy to be deposited with the owners.

Patterson, Justice, said, “ the question is whose servants were the crew, for their negligence has occasioned the accident, I do not say that they are not the servants of the charterer. To hold that the hirer is liable is not inconsistent with holding the latter liable also. The issue is whether the defendants had the possession and care of the vessel by their servants, which brings us back to the question whose servants were the owners.

Now on the charter party alone I have no difficulty in saying that they were the servants of the owners.” This case differs from the case above cited and the class of cases to which we were cited on the argument in this respect. In that case the action was by a stranger who had made no contract with any one.

He had sustained an injury by the negligence of the servants of the owner, and they were not allowed to escape from liability for their negligence because the use of their vessel and the labor of their servants belonged temporarily to a third party, the servants being still under the control of the defendants. In this case, the action is founded on a duty arising out of contract express or implied, and founded upon a consideration. The defendants made no contract with the plaintiff, owed him no duty and were not liable to him upon or by reason of any contract between them.

Can it be pretended that the defendant in case of Fenton v. Dublin Steam Packet Co., would have been held liable to the owner of goods shipped by the steam boat chartered to Bails in pursuance of a contract with the charterers? I think not; and if I am right in this view of the case the defendants in this cause were not liable to the plaintiff for the loss of the box in question. They were not common carriers of the plaintiff’s goods, but he must look to Chase & Co. for his indemnity.

A carrier by stage coach by some accident so injures his coach that he is compelled to hire another coach and does hire it with team and driver to take his passengers to their place of destination, and while so using the hired coach the baggage of a passenger is injured or lost. Is the owner of the coach liable to respond to the passenger, or must he look to the carrier with whom he made the contract? I think the latter is alone liable.

For. the foregoing reasons I have arrived at the conclusion that the judgment ought to be affirmed as to the defendants Rich and Ellisons, who with Perkins were the owners of the boat hired by Chase & Co. to transport the plaintiff and his goods from Albany to Buffalo, but the majority of my brethren are of opinion that the defendants as owners of the boat were liable to the plaintiff in their character as common carriers, notwithstanding there was no privity of contract between them and the plaintiff: that they had a duty to perform as common carriers and were liable for their failure to perform such duty.

The judgment must therefore be reversed as to Rich and the Ellisons, and as to them a new trial be ordered with costs to abide the event. The judgment as to the defendant Perkins depends upon other principles, viz: 1. Is his certificate of discharge in bankruptcy a defence to the plaintiff’s action? 2. Is giving notice of such discharge with the plea of the general issue a sufficient pleading under the provisions of the fourth

section of the bankrupt law? The plaintiff objected to reading the certificate of dis* charge in bankruptcy of defendant Perkins in evidence on the following grounds: “1. He has not pleaded his discharge, but has given notice with his plea of the general issue that he will prove it. 2. The demand of the plaintiff is not such a one as can be discharged by the proceedings in bankruptcy. 3. There is no proof of the publication of notice to creditors to show cause against the prayer of the petition being granted. 4. There is no proof that Perkins ever petitioned to be discharged. 5.

There is no proof that any order to show cause against his petition to be discharged was ever made. There is no proof that notice of any such order was published or that notice thereof was served upon any of Perkins’s creditors:”

Section 4 of the bankrupt act of 1841 provides, among other things, that every bankrupt who shall bona fide surrender all his .property and rights of property with the exceptions before mentioned for the benefit of his creditors, &e., shall be entitled to a full discharge from all his debts to be decreed and allowed by the court which has declared him a bankrupt, and a certificate thereof granted to him by such court accordingly upon his petition filed for such purpose, and such discharge and certificate when duly proved shall in all courts of justice be decreed a full and complete discharge of all debts, contracts and other engagements of such bankrupt, which are provable under said act, and shall be and may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever, and the same shall be conclusive evidence of itself in favor of such bankrupt, unless the same shall be impeached for some fraud or willful concealment by him of his property or rights of property as aforesaid, contrary to the provisions of said act on prior reasonable notice, specifying in writing such fraud or concealment.

Section 5 provides that all creditors whose debts are not due and payable until a future day, all annuitants, holders of bottomry and respondentia bonds, holders of policies of insurance, sureties, endorsers, bail or other persons having uncertain or contingent demands against such bankrupt shall be permitted to come in and prove such debts, or claims under said act, and shall have a right when their debts and claims become absolute to have the same allowed them. The bankrupt act itself, it will be seen, disposes of the four last objections.

The certificate is made conclusive evidence itself in favor of the bankrupt unless the same shall be impeached for fraud, &c. In Sherwood v. Mitchell, 4 Denio, 437, the supreme court say, “ The discharge is presumptive evidence of all the facts asserted in it, and is conclusive until overthrown by evidence of some fraud which by the act avoids it.” See also Burnside v. Bingham, 8 Metcalf Rep.; Hubbell v. Cramp., 11 Paige, 310; Ruckman v. Cowell, 1 Coms. 505.

There remain then but the two questions above mentioned, being the two first of the said objections taken by the plaintiff to reading the discharge in evidence. First, that the discharge should have been pleaded and can not be given in evidence under a notice.

This question has never been decided in this state, and we must determine whether the words of the statute as contended for by the appellant must be complied with literally, and require a special plea in bar to be pleaded to which a demurrer may be interposed, or whether the statute is to have a liberal construction and be carried out in accordance with the general rules and principles of pleading where the action may be brought.

The plaintiff can not be injured by allowing the discharge to be given under the notice, as his right to prove that it was obtained by fraud, or that the demand belonged to a class of demands not discharged, is not affected by its" being so given in evidence. In the case of Ruckman v. Cowell above cited, the court held that the court should receive evidence to impeach the discharge without giving previous notice of such impeaching evidence in those cases where no opportunity was allowed to give such notice.

The objection, therefore, that the plaintiff can not impeach the discharge because he has- given no notice of such impeachment, is not tenable. Upon proof of the discharge by the defendant under his notice, the plaintiff has a right to prove that the same was void for fraud, or wilful concealment by the defendant of his property or rights of property, without having given prior reasonable notice of such fraud or concealment. Indeed, the case of Ruckman v. Cowell disposes of this question, so far as it may be settled by analogy.

In that case the court approved of the decision of the supreifie court, admitting the disclosure in evidence without any plea or notice thereof, on the ground that where the form of the pleading is such as to afford no opportunity of pleading the'discharge, it may be given in evidence on the trial without notice. If the construction of the statute contended for by the appellant is to prevail, the discharge ought not to have been admitted in evidence even in that case. Such construction would have entirely defeated the operation of the statute.

I am aware that it has been the general practice to plead the discharge; but the statute ought not to have so strict a construction as to require a departure from the ordinary practice of the state courts, and the certificate of discharge was properly received in evidence in this cause under the notice. It is objected that the notice itself was insufficient. It is however a sufficient answer to this objection that no such point was taken on the trial. We are lastly to consider whether the' demand of the plaintiff is such a one as can be discharged by thé proceedings in bankruptcy.

The action against a common carrier is usually an action for a wrong, and not strictly upon contract. That it is properly an action for a wrong has .been settled by numerous cases in the books. It was so held in the case of Brotherton v. Wood, 5 Brod. & Bing. 54; and Ansell v. Waterhouse, 2 Chitty. Rep. 1. It has also been decided by the supreme court in this state that the defendant’s liability for a tort is not affected by his discharge under the bankrupt law, unless before the petition in bankruptcy was presented the demand had become a debt by being converted into a judgment. It was so held in Crouch v.

Gridley, 6 Hill, 250, for seducing the plaintiff’s daughter. So in the case of Kellogg v. Schuyler, 2 Denio, 73, which was an action of trespass pending at the time of presenting the petition, held not affected by the discharge. So in the casé of Spalding v. The People, 7 Hill, 301, held in the court of errors that a fine imposed upon a party by the court of chancery for the wilful violation of an injunction, is not affected by his discharge under the bankrupt law. The latter case was removed to the supreme court of the United States and the judgment of the court of errors was affirmed in that court.

These decisions, however, do not affect the questions tp be decided in this cause. The action here, though in form for a wrong, is founded on a contract. It is founded on an “ engagement,” and is technically a “ claim.” The actions of trespass and seduction are technically neither engagements nor claims. It was contended on the argument that the cause of action in this case was a claim for damages which could not be liquidated except through the intervention of a jury. To this it may be answered that the bankrupt’s discharge operates as well upon unliquidated as liquidated damages.

There is nothing in the act confining it to a debt or to liquidated damages. It is sufficient if the claim or demand is founded upon “ contract” or “ engagement.” The plaintiff can not defeat the defendant’s plea of bankruptcy by bringing his action in tort instead of contract. He can not by varying his remedy change the legal rights of the defendant. In the case of Brown v.

Treat, 1 Hill, 225, which was a motion to discharge the defendant from arrest upon a capias ad satisfaciendum issued upon a judgment obtained against him, the first two counts of the declaration were in assumpsit, the third in case for negligence of the defendants as warehousemen in not safely keeping and delivering to the defendant certain goods and chattels; the fourth was in trover for the same goods.

The court, Cowen, J., say, “ It is true that the bailor who sues his bailee for not fulfilling such implied contract may in form overlook it, and at his election resort to case or trover according to the nature of the injury. Yet I hardly think the mere form of the action should be allowed to govern the right of imprisonment. The statute forbids imprisonment by execution in a suit to recover damages for the nonperformance of any contract. The defendant Treat has been .imprisoned in a case clearly within 'these words.

It seems to me the statute was intended to reach all those cases wherein the plaintiff may in fact have given credit to the defendant, except such as are mentioned in the second section. He can not by electing to sue in case or troverchange the truth, and it is in this, that the privilege of the defendant consists. The law will not allow that to be done indirectly which it forbids to be done directly. Bailment to an infant presents a similar instance. The action being directly for his negligence,- will not oust him of his •defence though calling for a plea of not guilty. -So in case of The People v.

Kendall, 25 Wendell, 399, the court, (Nelson, Ch. J.,) say, “ It is a well settled rule that a matter arising ex contractu though infected with fraud can not be changed into a tort in order to charge the infant by a change in the remedy.” It is true the case of Wallace v.

Morss, 5 Hill, 392, seems to militate against this doctrine, but upon examination of that case it will be found that the authorities cited established nothing more than that the title to goods obtained by false representations does not pass, and the plaintiff in that case was allowed to recover, (the presumption is, in trover, for the report of the case does not state.) The principle that where the substantial ground of action rests on promises, the plaintiff can not by changing the form of action make a person liable who would not have been liable on the promise, is decided in the case of Green v.

Greenbank, 2 Marshall, 485; 4 Eng. Com. Law Rep. 375. This was an action on the case against an infant for falsely warranting a mare sold by the defendant, to the plaintiff to be sound, knowing her to, be unsound. So an infant is not,liable on the custom of the realm for the loss of goods .committed to his care as an innkeeper. In the case of Campbell v.

Stakes, 2 Wendell, 137, decided in the court of errors, the chancellor who delivered the opinion of the court, which was concurred in unanimously, (the case being an action of trespass for misusing a horse hired by the defendant who was an infant,) says, “ If the plaintiff declares in case, he affirms the contract of hiring, and the plea of infancy is a good defence to such action, for he can not affirm the contract and at the same time by alleging a tortious breach thereof deprive the defendant of his plea of infancy; and cited the case of Jennings v. Rundall, 8 Term Rep. 335, and the above case of Green v.

Greenbank. Judgment must be affirmed as to the defendant Perkins. Ordered accordingly.