Mississippi Central R. R. v. Fort

Citations

• 44 Miss. 423

Syllabus

<p>1. Eobm oe action — Assumpsit—Trespass.—Where the plaintiff sues in assumpsit to recover the value of live stock killed or injured, and filos, with his declaration, an account specifying the various animals and the value of each, he cannot take judgment final for want of appearance or plea of defendant, under the provisions of art. 253, Rev. Code, 521; that article, so far as it allows final judgment, refers to actions ex contractu alone.</p> <p>2. Saute. — The proper form of action for such injury would he trespass, and» although the plaintiff may waive the tort and recover tho value in assumpsit, ho can not thus secure the benefit of that statue. The injury results from a trespass, and not from a contract express or implied.</p> <p>3. Same_The gravamen of the suit is the injury resulting from the negligent conduct of the defendant, resulting in the destruction of the stock; and to recover, the plaintiff must show the facts in evidence that would sustain an action of trespass; and however pleading may set it out in one form of action or another, it remains essentially the same, sounding in damages.</p>