The opinion of the Court was delivered by
Gibson, C. J.The objection at the Circuit Court was that the jury had not found costs as well as damages. That point came up in Stores v. Tong, Rep. & Ca. of Prac. in C. B. 7, in which it was held that where the jury are ex officio bound to give costs, .and omit to do so, the Court will supply the deficiency. Here the plaintiff’s right to costs is resisted on the ground that the cause of action was cognizable by a justice of the peace. The declaration is in case; and although the action has grown out of a contract, it is not necessarily within the act of assembly. No other contract formed an ingredient in the subjectof it, than that implied by the law, which requires any one employed in an art or calling, to bring to the business a competent share of diligence and skill. The gist of an action on the .case like the present, is not a failure to perform, but a failure to perform in a worhmanly manner, avhich is a tort. Slater v. Baker, 2 Wils. 359. Dr. Groenvelt’s case, Ld. Raym. 214. An undertaking for skill and diligence is implied no further than to raise a duty, the BREACH of which is the gravamen and meritorious cause of the action. The difference between assumpsit which is an action directly on the contract, and case which is collateral to it, is shewn by the pleadings. *295the general issue in the first being non assumpsit, and' in tlie se-eond, not guilty. These are sometimes concurrent remedies; as-in an action against a carrier who may be made to respond either immediately on the contract whichafiords a specific ground oB action, or on the custom which raises a duty to carry the goods safely ; and as the one or the other form is adopted, so may the count be joined with other counts sounding in contract or tort.Law of carriers, 117. In all cases where the action is not on the contract,, but for the breach of a collateral duty, the gist is a personal tort; as where a smith prides a horse in shoeing, or a farrier kills him by bad medicines or neglect: and it is emphatically the gravamen in an action against a barber for barbering his customer negligenter et inartificialiter. 2 Bulsir. 333. That the defendant’s liability arose remotely out of a contract, therefore, is by no means decisive of the question. As was said' in Zeigler v. Gram, 13 Berg. & Rawle, 102, the legislature had in view a contract in the popular sense of the word; notan artificial agreement depending on a fiction of law. A special action on the case lies for what is substantially a tort, although a tort deducible from the existence of a contract. Such was not within the view of the legislature; and We are satisfied the cause of action here was not a subject for the jurisdiction of a justice.
Huston, J — Dissented.Judgment affirmed