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T. T. 1864. Kerr v. Midland Great Western Railway Co. (a) does not apply, Queen's Bench because the Court there could not say that the action was framed in anything but contract. The declaration in that case was framed differently from the one in Tattan v. Great Western Railway Co. (b); which case was decided on a statute (13 & 14 Vic., c. 61, s. 11) that puts on one side all actions of tort, and on the other all actions of assumpsit. The argument derived from that statute, coupled with the 19 & 20 Vic., c. 108, s. 30, was, that the action against the carrier must be deemed to be in contract; but the Court held otherwise. Legge v. Tucker (c) is in point.—[Fitzgerald, J. I do not understand in this case any breach of duty beyond the breach of the contract, which in the retainer is to use reasonable care and diligence.-O'BRIEN, J. Surely the meaning of retaining a man as an attorney is a contract.]-There should be a reward given in the case of an attorney or a surgeon.-[FITZGERALD, J. But here, what is the duty ultra the contract? The same rights spring from the duty and from the contract. In Legge v. Tucker the duty would not at the Common Law have been co-extensive with the contract. The contract was more extensive than the duty; and therefore it was necessary to shape the action in contract. Again, therefore, I ask what there is in this case which could not have been established in an action of contract? — Under the Common Law Procedure Amendment Act (Ireland), 1853, it is not necessary to use any particular form of action.]-But the substance of the different actions remains; and one must look at the action and its substance, in order to ascertain whether it is an action in contract or is an action in tort.-[O'BRIEN, J. But this action is for an injury at least connected with contract.]-Just so; and that is a class of actions not provided for in section 243, which provides for actions disconnected with contract. That section 243 is not exhaustive appears from the consideration that it does not provide for an action of detinue at all.-[FITZGERALD, J. Because it may either arise from contract, or be for a simple wrong.]-The case of Keys v. Belfast and Ballymena Railway Co. (d) cannot be reconIciled with the other decisions.

James Murphy, contra.

This action, partaking the nature of both contract and tort, entitles the plaintiff to full costs: it is essentially founded on contract. In the words of Cockburn, C. J., in Tattan v. The Great Western

(a) 10 Ir. Com. Law Rep., App. xlv.

(b) 29 Law Jour., N. S., Q. B. 184; S. C., 6 Jur., N. S. 800.

(c) 1 H. & N. 500; S. C., 2 Jur., N. S. 1235.

(d) 8 Ir. Com. Law Rep. 167.

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Railway Co. (a), "The duty arises as soon as the contract is made, T. T. 1864. and is engrafted by the common law on the contract." Unless Queen's Bench therefore a contract between an attorney and client is made, no duty is imposed on the attorney for the client. And then arises this absurdity that, if the client avers, "I retained you for hire and reward, and you promised to use due diligence," that, being an action of contract, the plaintiff must recover £20, in order to entitle him to full costs; but, if the plaintiff does not aver that the retainer was for hire and reward, then the action would be founded on tort, and a verdict for £5 will entitle him to obtain full costs. This is, however, an action founded on the promise which the law implies. That the two classes in section 243 include all actions, appears further from the division of actions in schedule C into actions of contract, and actions for wrongs independent of contract; and meaning, by "actions of contract," "actions founded on contract."

But

By the 9 & 10 Vic., c. 95, s. 129, in England a plaintiff was deprived of costs if the verdict was for less than £20, when the action was founded on contract; or if a sum of less than £5 was recovered in an action founded on tort. If the word "founded" had remained in the later statute no question would arise. that statute was superseded by the 13 & 14 Vic., c. 61, s. 11, which deprived the plaintiff of costs. That statute provided for all actions. of case, except in the case of judgment by default. Then came the 19 & 20 Vic., c. 108, s. 30, which deprived a plaintiff, who recovered judgment by default, of costs, unless they were awarded to him by a Judge. The Court considered that that section left untouched altogether actions on the case, and applied only to the first part of the 13 & 14 Vic., c. 61, s. 11.-[LEFROY, C. J. But assumpsit was originally an action on the case, just such as trover. There were some cases in which a plaintiff might declare in assumpsit for breach of contract, or in tort for negligence in the performance of the contract.]-Those are almost the very words of Tindal, C. J., in Boorman v. Brown (b) : :- "That there is a "large class of cases in which the foundation of the action springs "out of privity of contract between the parties, but in which, ne"vertheless, the remedy for the breach, or non-performance, is "indifferently either assumpsit or case upon tort, is not disputed." Again, page 526, he said :-"The principle in all these cases would seem to be, that the contract creates a duty; and the neglect to "perform that duty, or the non-feasance, is a ground of action upon "a tort." That statement of the law was substantially approved

66

(a) 29 Law Jour., Q. B., N. S. 185.

(6) 3 Q. B. 525.

Queen's Bench

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T. T. 1864. in Morgan v. Ravey (a). Therefore an action against an attorney differs nothing from an action against a surgeon, or against any other person. According as an averment of the promise is introduced or omitted, the action becomes one of assumpsit, or of case. In Morgan v. Ravey, Channel, B., limited the rule in this way :"That a plaintiff cannot, by changing the form, make the defendant. responsible in the one action, when he would not have been "responsible in the other."-[O'BRIEN, J. That limitation was in fact introduced to avoid the absurdity that, in one shape of action the plaintiff might recover full costs, and not in the other, though that other was founded on precisely the same state of facts.]—Just So. [LEFROY, C. J. And the qualifications as to costs were made in ease and relief of defendants.]—Yes; and this case cannot be distinguished from Kerr v. Midland Great Western Railway Co. (b); for the two cases state identically the same cause of action, if the words "common carrier" were substituted for "attorney." By leaving out the words "promise and agree," the section might be evaded, and great injustice done. There is no English Act which uses the phrase "disconnected with contract."-[FITZGERALD, J. The strength of your case is, that the section means to provide for all classes of cases. In which class would you place an action of debt against a tenant for double value ?]-When that case arises the Court will decide it.-[FITZGERALD, J. Where would you place an action of debt against a Sheriff?]-I need not push my argument beyond this, that all actions connected with contract are included in the first part of the section, while all actions disconnected with contract are provided for in the second part of it. Then the question is at end, because this action is manifestly an action connected with contract.-[FITZGERALD, J. What is the true interpretation of the phrase "disconnected with contract"? for really I do not understand it.]—It means not founded on contract."-[LEFROY, C. J. Or, could the phrase mean actions in which you would have no choice between suing in one form of action or the other?-O'BRIEN, J. The first part of the section means that the right of action arises from the contract.-LEFROY, C. J. The true principle seems to be that the plaintiff shall not, by his allegation, onerate his adversary with costs.]-The English Act certainly meant to provide for all classes of actions.-[FITZGERALD, J. In cases of common carriers and attorneys, we are dealing with classes of persons from whose position there arises a duty wholly independent of contract. A common carrier is bound to take care of all my goods that come to his hands, although there is no contract

(a) 6 H. & N. 265.

(b) 10 Ir. Com. Law Rep., App. xlv.

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between him and me.]-But that duty is not entirely independent T. T. 1864. Queen's Bench of contract.-[FITZGERALD, J. But a common carrier who gets my goods, no matter who gives them to him, is bound to take care of them. So, in the case of an attorney, he holds himself out to the public as a person who acts with skill and diligence, and promises that he will so act.]-Yes, for those who employ him.-[O'BRIEN, J. But the question is, whether his undertaking to act at all is not a contract?]-Tattan v. The Great Western Railway Co. was, though brought against common carriers, held to be founded on the common law duty independently of contract.-[FITZGERALD, J. The way in which I read the judgment of Cockburn, C. J., in that case is, that he regretted having to decide with the plaintiff. But the plaintiff had been given the option to bring his action in either of two forms-either upon the common law duty or upon the contract; and the statute enacted that he should have his costs.]-But that case was decided on the later Act.

O'Riordan, in reply.

The Legislature has not professed to divide all actions into two classes, nor to relieve defendants. Tattan v. The Great Western Railway Co. decided that the plaintiff might bring his action in tort, if he pleased. Here, likewise, the plaintiff was entitled to frame his action in tort, and to enjoy the benefit of the decision in that case. Kerr v. Midland Great Western Railway Co. was decided before Tattan v. Great Western Railway Co., otherwise it would have overruled that case. The judgment of Monahan, C. J., went very much on the frame of the count, as not being distinctly in either contract or tort.-[LEFROY, C. J. What interpretation do you give to the words "disconnected with contract ?"]-The first part of the 243rd section deals merely with cases of contract; and the latter part deals with actions of pure tort. The present case is a casus omissus, and actions of detinue is another; and yet in it a verdict for one shilling gives full costs.-[FITZGERALD, J. There are several others also.-O'BRIEN, J., pointed out that the words in schedule C, "wrongs independent of contract," greatly resemble those in the 243rd section, "wrongs disconnected with contract."-FITZGERALD, J. The argument drawn from that schedule cuts both ways, because the instances given of actions of contract are of actions of pure contract.]-The forms given in the schedule are merely given as illustrations, and are not intended to do away with any rights.— [FITZGERALD, J. Did you look back to the repealed section of the Civil Bill Act, for which the section in the Common Law Procedure Amendment Act (Ireland), 1853, has been substituted ?]-No. In

C

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T. T. 1864. Legge v. Tucker the action was framed in tort, in order to evade Queen's Bench the statute; and there the Court held it could not be done. Actions of detinue are plainly not within section 243; and the Court has only to deal with its plain words, which are satisfied by actions of contract, and actions of pure tort disconnected with contract; leaving unprovided for the class of mixed actions. Morgan v. Ravey has no bearing on this case, because the observation of Channel, B., goes only to this extent, that a plaintiff cannot bring in one form an action which must be brought in another. But that decision leaves untouched altogether actions of this mixed nature. Cur. adv. vult.

In this case we are of opinion that plaintiff's application should be refused; and my LORD CHIEF JUSTICE, who was present during the argument, has stated to us that he concurs in that conclusion. The application was for the purpose of reviewing Master Colles's taxation of costs, in an action brought by a client against her attorney, for alleged negligence with respect to the purchase of certain lands, in which he acted for her. It appears that subsequently the title was found to be defective, and that her purchase was set aside. The summons and plaint claimed a considerable sum for damages, but Chief Justice Monahan, before whom her case was tried, ruled that her claim for damages should be confined to the amount which she was actually out of pocket by the transaction, and she recovered a verdict for only ten pounds. The Taxing-Master held, that this was a case in which, under the 243rd section of the Common Law Procedure Act, the plaintiff was only entitled to half costs, as the amount which she recovered was less than twenty pounds; and the present application is by way of appeal from such ruling. That section provides, "That in case the plaintiff in any "action of contract (except for breach of promise of marriage) "shall recover, exclusive of costs, less than twenty pounds; or in "any action for any wrong or injury disconnected with contract "(except replevin, or for slander, libel, malicious prosecution, seduc"tion or criminal conversation), a sum not exceeding five pounds, "the plaintiff in any such action shall be entitled to no more than "one-half of the ordinary costs, unless the action has been brought "for the purpose of trying a right to property more extensive than "the sum sued for." The Master held, that the present action was to be considered as one within the first branch of the above provision—namely, "an action of contract," and not an action within the second branch for "wrong or injury disconnected with con