Gore v. McLaughlin

3 W. Va. 489 | W. Va. | 1869

Berkshire, J.

The only question presented for our consideration is, whether the act of the 27th of February, 1866, extending the time in which actions of trespass and case might be commenced in certain counties of the State, includes actions of assumpsit or only actions of trespass and actions on the casein form ex delicto. That actions of assumpsit, as ordinarily understood, are also a species of trespass on the case cannot be questioned. But in strictness it is more so, I think in name than in substance and id reality. For the distinctions between the two actions are solid and well defined, the one always being in form ex contractu and the other.in form ex delicto. And accordingly we find that the elementary law authors, in treating of these actions uniformly do so under distinct heads and definitions, the one defined and found under the head of assumpsit, and the other under the head of “actions on the case;” and I think there can be no doubt that, when an action on the case is mentioned at the present time, it would usually, at least, be understood to mean an action in form ex delicto, and not the common action of assumpsit; while it is certain that whenever the latter action is named it excludes the idea of an action founded in tqyt. See 1 Chitty’s Pleadings, p. 88, marg.

The terms employed iu the action in question to describe the actions intended to be embraced in it, are “ trespass or case.”

Considering the time and surrounding circumstances under which this action was passed and the words used, it seems to me quite evident, that it was the manifest purpose of the legislature to extend the remedy for certain trespasses and torts committed in the counties to which the law applies, during the late rebellion, and not to embrace actions founded on contract. And this, I think, will appear still more evident when we consider that, if it was intended to extend the remedy beyond actions in tort, there was the same reason and necessity for including the other personal actions founded on contract, namely, the action of debt, detinue and covenant, and also the action of trover and conversion, as there was for the action of assumpsit; and it seems to me difficult to assign any sufficient reason why it would not have been done, if, in fact, it was intended, as now'Claimed, to extend the remedy to actions of assumpsit.

I think there is no error in the judgment complained of, and that it should be affirmed.

The .remaining members .of the court concurred.

Judgment affirmed.