Sir Barnes Peacock, C.J.@mdashIt appears to me that the judgment is correct, and ought to be affirmed. The suit was brought by several persons, who alleged that they carried on business in co-partnership, under the style of the Indian Bullock Train Company; and that at the time of the delivery of the goods to the East Indian Railway Company they were partners. It turned out on the evidence that all the plaintiffs were not co-partners at the time the cause of action accrued, or when the goods were delivered. The Court, under the provisions of the Act, amended the issue, and raised the question whether the plaintiffs were or were not partners. It appears to me that the Judge had power to amend the issue, and that it is the correct mode of amending errors in the plaint. You do not amend the plaint, but you may amend the issues at any time. Section 141, Act VIII of 1859, says : At any time before the decision of the case, the Court may amend the issues, or frame additional issues, on such terms as to it "shall seem fit, and all such amendments as may be necessary for the purpose of determining the real question or controversy between the parties shall be so made." This was necessary for the purpose of determining the real question in controversy as to whether the plaintiffs or any of them are entitled to recover. In England, when several plaintiffs are improperly joint in an action of tort, not of contract, the misjoinder can only be taken advantage of by a plea in abatement. There is nothing of the kind here; and, therefore, there must be some mode of proceeding. The more correct course would have been for the Judge merely to have amended the issue, and to have allowed the names of the plaintiffs to stand in the plaint. If upon the amended issue it had been found that only two of the plaintiffs were partners at the time of the delivery, or when the cause of action accrued, the Court would have found that only two were partners at that time; and would have decreed that they should recover the value of the goods, and that decision would have been binding and conclusive on all the parties. If there was an error, it has only been in striking out the names of two of the plaintiffs, instead of leaving them in the plaint, and giving a decree in favour of the other plaintiffs who were found to have been partners. It may make a difference if you strike out the names of any of the plaintiffs, because if the suit fail, the defendants would have to look to the remaining plaintiffs, and they would be injured. In this case the defendants have failed; and have, therefore, not been injured. There were four plaintiffs, and two have been struck out; but they would be bound as much as if they had remained. There has been no substantial injury done, if striking them out was an error. Section 350 of Act VIII of 1859 applies. It says : The judgment may be for confirming or reversing or modifying the decree of the lower Court; but no decree shall be reversed or modified, nor shall any case be remanded to the lower Court on account of any error, defect, or irregularity either in the decision or in any interlocutory order" passed in the suit not affecting the merits of the case or the jurisdiction of the Court." If this was a wrong order, it was an interlocutory order striking out two of the plaintiffs instead of leaving them on the record, but is was an error which has caused no injury to the defendants; and, consequently, it is not a ground for reversing the decree on appeal.
2. The only remaining question is what is the effect of section 11 of Act XVIII of 1854 cited to us. By the Act of incorporation of the East Indian Railway Company, the Company was incorporated for the purpose of making and constructing, working and maintaining such railway or railways in the East Indies, including all necessary or accessory or convenient extensions, branches, stocks, and works as may be agreed upon by the said Railway Company and the East India Company; and also of doing and performing all such matters and things necessary or convenient for carrying into effect the objects and purposes aforesaid as may also be agreed upon by the said Railway Company and the East India Company." Therefore, they are to work the line in such a manner as may be agreed upon. Possibly the agreements between the plaintiff-Company and the East Indian Railway Company, cannot be looked at by us as they are not in evidence; and shutting them out of view, we do not find whether the Railway Company agreed to act as common carriers; but we find, in point of fact, that the defendants acted as common carriers, and took the goods as such; and, therefore, we must assume as against the Company that they were only carrying on that business which they would have been authorized to do, if they had entered into an agreement; but we cannot assume that they have carried on business as carriers without authority. Under these circumstances it appears to me that there is sufficient evidence that the East Indian Railway Company were carrying on business as carriers, and received these goods as such.
3. Then have they limited their responsibility, or are they liable as common carriers, the goods having been received by them and not delivered? The only limitation is by section 11, which says : The liability of such Railway Company for loss or injury to any articles or goods to be carried by them other than those specially provided for by this Act, shall not be deemed or construed to be limited or in anywise affected by any public notice given, or any private contract made by them; but such Railway Company shall be answerable for such loss or injury when it shall have been caused by gross negligence or misconduct on the part of their agents or servants." It appears to me that that clause is merely a saving clause restraining them from limiting their liability with regard to ordinary goods, beyond gross negligence and misconduct; they possibly may, with the consent of the Government, limit their liability for loss arising not by gross neglect; but they have not obtained the consent of Government, and have not entered into a contract, or given notice limiting their liability. Section 11 means that, notwithstanding any contract or notice, they shall be liable for loss when caused by gross negligence or misconduct, leaving other oases, where there is not gross negligence or misconduct, to be dealt with according to ordinary law. Decree of the Court below affirmed with costs.
