Humiston v. Smith , 22 Conn. 19 ( 1852 )

Waite, J.

The statute provides, that in all actions of trespass and trespass on the case, tried in the county or superior court, if the damages found by a verdict of the jury, or otherwise, shall not exceed thirty-five dollars, the plaintiff shall recover no more costs than damages, unless the title of land, the right of way, or the use of water, is in question. Statutes, title I., chap. 12, sec. 152.

The question arising upon the present record, is, whether the action is trespass on the case, within the fair intendment of that statute. If it be, it is not denied but that the plaintiff is precluded from recovering more costs than he recovered damages by the verdict of the jury in the county court.

And we are of opinion that such is the action. It is tech nically called an action of trespass on the case. The declaration is in form ex delicto, embracing three counts, two upon a false warranty, and the other upon a false representation respecting a horse. No question is made, but that the last count is in form, and in substance, trespass on the case.

But it is insisted, that the two first do not fall within the provisions of the statute, because they are founded upon cr contract; and the statute has never been construed as extending to actions of assumpsit, although they also are actions of trespass on the case.

It is true, such actions were formerly considered as actions on the case, and are still so described in the writ; yet they have so long been treated as a distinct species of action, and the form of declaring is so different from that in other actions on the case, that th'ey have ceased to be embraced under that general denomination. And at the present time, when an action on the case is mentioned, either in a statute or elsewhere, it is usually understood to mean an action in form ex delicto. 1 Chitty’s Pleadings, 132, edition 1844.

Thus, where a statute authorized an incorporated company to make calls upon subscribers to the stock of the company, and sue for the same in an action on the case, the court held, that the company might declare in tort, although the suit was brought for a mere breach of contract, in not paying a sum of money; and that the words of the statute were not to be construed as meaning an action on the case in assumpsit. The Huddersfield Canal Co. v. Buckley, 7 T. R., 6.

An action upon a warranty is indeed founded upon a contract, but the plaintiff may at his election declare either in assumpsit or in tort. The two forms of action are, however, so distinct, that they can not both be joined id the same declaration; and had the present declaration embraced a count in assumpsit on the warranty, it would have been bad. Corbett v. Packington, 6 B. & C., 268. (13 E. C. L., 170.)

But the counts upon the warranty, as laid in the declaration, were very properly joined with the one, charging the defendant with a fraud in the sale of the horse, confessedly a count in trespass on the case, because they are all founded upon torts. Whether an action is in assumpsit or on the case, depends not upon .the subject matter of the suit, but upon the form of the declaration.

There are, indeed, several subdivisions of actions on the case, as actions of trover, for slander, for a libel, for a malicious prosecution, and others; and yet they all retain the general name; and the declarations in such cases are always in form ex delicto.

Upon a contract of warranty, the party injured may, at his election, declare in assumpsit or in tort. But it is not the only case where a party may • have 'his election. The same rule applies to actions against attorneys, carriers, innkeepers, and other bailees, for injuries arising from negligence.

By making the denomination of the action depend upon the form of the declaration, and not upon the subject matter, the application of the statute becomes simple and easy ; and we avoid many of the embarrassments resulting from a different rule.

Thus, in the present case, the declaration contains three counts, and a genera] verdict, has been rendered upon all. If the last count is in case, and the others not, what costs shall be allowed the plaintiff? Had the declaration embraced only the counts upon the warranty, and the action was not an action on the case, the plaintiff would have been entitled to full costs. Will the joinder of a count for the fraud bring the case within the statute ?

But no such difficulty exists upon the construction we give to the statute, and which we consider the true one.

We are therefore of opinion, that the judgment of the superior court ought to be affirmed.

In this opinion, the other judges concurred, except Ells-worth, J., who tried the cause in the court below, and was therefore disqualified.

Judgment affirmed.