In Weall v. King, 12 East 452, it was held,that an action on the case, alleging a deceit by "means of a warranty, though laid in tort, is founded in contract. But Powell v. Layton, 2 N. R. 365, is the specific case before the court. To an action on the case in the form of a tort against a common carrier, the defendant successfully pleaded in abatement the non-joinder of his partners, which he could not have done had the action not been founded in contract. The word “ suscepit” was not in the declaration, and the word “duty” was in’its place; but the chief justice, delivering the opinion of the court, held that to be indifferent, because the duty of a carrier necessarily springs from his contract alone. The conflict of authority on the subject was critically examined by him, and, we think, the proper conclusion deduced from them. Also in Dale v. Hall, 1 Wils. 282, Mr Justice Dennison expressed an opinion that the action is essentially founded in contract whether the word suscepit is in the declaration or not. Here, however, an express undertaking is laid; and there cannot be a doubt, therefore, that the justice had jurisdiction.
Judgment affirmed.