' 07.-TESE'STATE OP ARKANSA& 259 • LITTVE ROM, 37uA: l 9 L -3 v 1 7 8 4 : k 1 8 . 1 d ' alir rallita . D againSt Asr1LEir .( AND RINGO. • . 1 AIMEE A ND : S m izAl-} .: , APPEA.14 Yfihrlk Pulaski' l';`ircuit COUrt. • . , The same poiats decided as idthd 04P .91" Arit4tt i -vs: --Cromvelt 'laid G4threy,. : A: i i t r i , i 1 T' it lo age 247 Palmer and Southmayd, th 1taa.à rters, ,coPplainecLor Ashley and Ringo, partnerS in the , pietiee. 4 'elaW; ..r in' . e the,caiirt . be , low, "of a plea of trespass on the ca. :" ,The . ifeelaraiion Contained several counts for failure tO collect deinandS entrusted to,thesdefendants, attorneys, each Concluding with' the forM,af words commonly used in assurnpsit, and a breach in assumPsit, falloWed by a count and hreach in indebitatus assumpsit. A bond for costs was filed by the Plaintiff's, who were non-residents of the State, before the commencement of the Spit, which purported in the bOdy of it to be filed in an action of as_: sumpsit. The writ was to answer to a plea of Trespass.on the ,case." On the 18th of April, 1838, the defendants moved the court below to dismiss the case, on the ground that there was no bond for costs filed therein applicable to thp case, nnd no sufficient bond far costs; and also moved the 'eourt to quash the writ, and dismiss the case on the ground of variance between the writ and declaration. On the same day the defendants filed their demurrer to the declaration. Upon this state of the case, the court dismissed the suit, for want of a sufficient bond for casts, and the plaintiffs appealed. FOWLER, kr the appellants: This was an action of assumpsit instituted by the appellants, Palmer and Southmayd, against Ashley and Ringo, in the Pulaski Circuit Court. The , appellants were non-residents, and before the institution of the suif, filed their bond for costs, for a suit about to be commenced. in an action of assumpsit. Vide Gey. Dig. p. 2441 sec. 5. In the commeneement of the declaratiOn, Use, PrintA complained "of a plea of trespass on the case," without addit?g the words "or prtim. ises," or any phrase of like import. Each and every countin the declaration is technically and substantially in a umpsit, and so are the breaches and conclusion. The writ corresponds with the declaration, requiring ti( defendants to answer to "a plea of trespass on the case."
260 CASES IN THE-SUPREME COURT LiTrLz ROCK, At the return term, the defendants, Autrey. and . Ringo, appeared by Ju ly, isss. attorney, and moved to dismiss the suit; because there waS no bond •for PALMER, costs filed applicable' to the case, the one tiled being for an action of and • SOUTH- assumpsit, and the existing suit one technically in case, and to quash MAYD the writ on- account of its variance froni the declaration ;• and, 45,1 1I, d L RY at the same time, tiled their general demarrer to the declaration. No RINGO. further notice was taken of the demurrer, or of that branch of the motion requiring the writ to be quashed; but the residue of the motion was sustained by the court, and the suit dismissed on the ground that the suit pending was in case, and the said bond for costs applied to a different species of actiOn—assunzpsit. And judgment was, therefore, given against the said appellants,for costs of the suit; from which-final j udgment this appeal was taken. The appellants contend: ist, That the whole proceedings on their part, includingsaid bond and suit, strictly and technically correspOnd, and are in assuinpsit. . 2d, That the words in the beginning of the declaration " trespasS on the caSe," are sufficiently deseriptiye, without adding those of " upon promises," in assumpsit, "or the like; that these phrases are, at best, but surplusage if inserted; and that an action " on the case," in its, genera/ meaning, includes assumpsit, and . meaps assumpsit, unless the • idea is controverted by the body of the declaration. Vide 1 ch. Pl. 135, 136; 1 Saund. Pl. 8,r Ev. 415; Plead. Asst.- 299; 11 East. 65; 1 Saund. Pl. cc i Ev. 335. .3‘ . d, Every count in the declaration . isis assumpsit, and would ton - e!y. fix the character or species of the action, even supposing that the beginning . Fere not sufficien fly definite. • Each case is for dereliction of duty Of the , Said Ashley and . Ringo, as attOrneys, as , is properly laid in assumpsit. Vide 1 cit. Pl. 93, 139, 140; 2' ch. Pl. 96, 97; 1 Saun. on Pl. Ev. 109, 415. 4th, Supposing the objection to the writ to be tenable, which is not because the declaration and writ under our laws are joined together, and Must be taken together, as to the description of the suit, - &c.; yet . such objection was curred by the said Ashley and Ringo's ;,Ippearing, and filing their demurrer to the declaration, which appearance cured all possible defects in the writ, had there been any--which brings us .back to ari issolated point: what specie. s of actioa is described in the declaration? Can this court say that it is not assumpsit ? . This settled, and the decision • of the Circuit Court must be reversed, as in direct
OF THE STATE OF ARKANSAS. 261 LITTLE 11001C. violation of law, and veicatious and oppressive to individual right. Jniy. 1838. WATKINS, TRAPNALL, and Comm, contra : PALMIiia and • The appellees rely upon the following points: SOUTH. MAYD 1. In the bond for costs in this case, the action is described to be a VS. ASHLEY a plea iii assumpsit." RINGO. 2. In the caption to the declaration and statement of the cause of action, whorefore the . plaintiffs complain, the action is described and stated to be a plea Of s " trespass on the case." , 3. ba the writ hi,thii e. ase; the defendants were surnmoned to answer Unto the plaintif6, , tO tieSpass On the case." There is at the present daY as Much difference between the action of trespass On the • caSe and an action of aSsumpsit, aS between. any Other tWo formS of action knoivn to the common law. One is an actio , n en coatractu-= -the other is an action ex delicto, and tnay as often be one sounding in cost as in damages> Where an action en the case is mentioned in a statute, it means an action ex delicto, and* nothing else ; and this, in England, iS an intortant diStinction aS to actionS bailable and not bailable. The generpl issue in one is non-assumpsit—in,th e other, not The , two forms of action do not admit of being joined as May debt -and .: detinue; . ' debt upon specialty and debt upon simple contract.— .Ch:,:Pl..137,, 8 St,. 9. A . decla ration in case sounding in cost, should conclude contra assunipSit A never does; and the old-fashioned phraseology, Of ".cOntriVing and fraudulently intending, &c." has been adjudged to beaiiiiecli g ioryiii the action of assumpsit, and indeed improper. Titte ' Aiect ioti of assuMpsit . was originally, and still is, with the eteetitien ; ef the Connhon counts an action on the case, and is frequent-.1yjit , yliaorpi. yo ld boob, " trespass on the case upon promises on non-. assuthpai .7 l , int • n eVer treSpass oa the case merely. The itateMent of-the nature and kind of action in the commence-meat ot . the 'deelaration; is , material as matter of description, as well to the court as to the other party , ;- and a bail , bend conditioned ter the paytrient of costs in a different kind of action, would be insufficien 't and not applicable: fOr there Might be several suits founded upon distinct causesOf action, which cotild hot be joined, pending in the same court, at the same time between the same : parties and for this reason, if for ho ether, great particularity is requisite in describing the kind of action n.
262 CASES IN THE SUPREME COURT 'LITTLE ROCK, in the bond for costs, in order that a breach of its conditions could be P 1 7,1838 sustained. 1st Ch. Pl. 290. IP4LM P4 and But if the statement of the kind of action in the commencemnt of SOUTH. MAYD the declaratioo is not material, the nature of the action set forth in, tne ec ASHLEY writ surely is. The writ is the summons, which the defendant is bound and RINGO. to obey, This is the commencement of the action, and the service of it can alone give to the court cognizance of the case: it is a moni-tion to the defendant, by-vvhich he is made to know what he is to answer, to whom he is to answer, and the term of the court at which he is to appear. It is the institution of the suit, upon which all subsequeot proceedings before the court must reSt. It is unnecessary for the court here to enquire into the nature of this action, further than what the plaintiff' hath him g elf averred it to be. In a case where his averments are material, and are to be taken most strongly against him, the court will not look behind the writ itself, which alone gives character to the action. Bat there is a material variance between the cause of action as set forth in the declaration, and that set forth in this case; and if Lhe court here, upon an examination of the record, should be satisfie4 that such is the fact, it would have itself constituted a sufficient ground for the court below to have quashed the writ Upon motion. A bond for costs is required in all cases previous to the institution of suits by non-residents. Experience shows how much securities in such bonds and recognizances are disposed to avail th8rnselves of technical objections in avoiding penalties; and it is clearly just and proper that 'all the officers of a court should be macie secure in their costs, before A suit shall have been instituted, or suffered to proceed where a bond or recognizance is required by Statute, and the Mode of taking it and its conditions specified. If the bond or recognizance be not taken in strict conformity with the provisions of the Statute, it is wholly void; nor does it become a common law obligation, upon which the party injured would be entitled to recover. Leigh, 314.. A court will regard its own, as well as statutory rules of practice.— It will enforce all the rules of pleading, which tend to keep the boundaries of actions distinct, and conduce to the harmony and symmetry of the science; and ever bear in mind that, next to the definition and correct understanding of legal injuries, the distinctions between legal remedies are essential to the libertY and safety of the citizen.
OF THE STATE OF ARKANSAS. 263 DICKINSON, Judge, delivered the opinion of the court: LITTLE ROCK, At the return term of this case, Ashley and Ringo filed a motion to july,1838: dismiss for want of sufficient bond for costs, (Palmer and Southmayd, ',Auden being non-residents) and also for a material variance between the writ soaunT dri. ISIA7sYD and declaration. No action was had upon the motions until after a de- AS I l aitEY murrer was put into the declaration, when the motion for insufficiency in RINGO. the appeal bond was reversed and sustained, the case dismissed, and judgment entered for costs, from which Palmer and Southmayd appealed. The same question is presented in the case of Means vs. Cromwell and Guthrey, decided at the present term of this court. It is, therefore, unnecessary to investigate the subject anew, as the same reasoning applies in this as in the case referred to. The judgment of the Circuit Court of Pulaski county must, therefore, be reversed with costs, and the case remanded for further proceedings to be had therein, in conformity with the opinion expressed WI the case of Means vs. Guthrey.
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