| Miss. | Oct 15, 1870
Elias A. Fort sued the Mississippi Central E. E. Oo. in assumpsit, for the value of sundry cattle and hogs killed and destroyed by “ the negligent conduct of the agent of the company.” With the declaration was filed a schedule of the several animals killed or injured, with the value of each annexed — the aggregate value of the whole footing up $311 75. The railroad company making no appearance or defense, judgment by default, final, was rendered for the $311 75, and interest.
The only question is, whether this judgment was justified by the allegations of. the pleading. Art. 253, Eev. Code, 521, permits a final judgment for “want of appearance, or plea,” in actions founded on an instrument of writing ascertaining the sum due, or “ on open account, when a copy of the account is filed with the declaration,” etc. But when the sum due does not appear, “ and in all actions sounding in damages, interlocutory judgments may be taken,” etc. The entire article, in so far as it allows-final judgments, refers to actions ex eontraetu. It is not permissible, by a mere change of the form of the action, to alter the .essential principles which characterize causes of action.
The appropriate form of action for the injury complained of, is trespass, and not assumpsit. If the plaintiff may waive the tort, and recover-for the value of the animals destroyed, he cannot thereby receive the benefits of this statute, which was meant for no such case. The damages which have resulted, flow from a trespass, and do not spring from a contract expressed or implied. To recover, the plaintiff must show the same condition of facts, in evidence, that would have sustained the action of trespass ; the gravamen of the suit is the negligent conduct of the company’s agent, resulting in the destruction of the stock, and however pleading
Judgment reversed, and case remanded.