Spencer v. Hewett

By the Court.

Benning, J.

delivering the opinion.

The action in this case was in the form of “ an action on ; an account,” authorized by the Act of 1847, “to simplify ■and curtail pleadings at law.” And the question is, was that the proper form for the action ? The Court held that it was not, but that trover was.

Considering this as an action in contract, we can find no English case that is a precedent for it. The case of Hill vs. Parrot, (3 Taunt. 273,) comes nearest to being such precedent. But in that case the facts were such, that unless an action ex contractu would lie, none would lie. Anci even that case is doubted. (Saund. Pl. & Ev. 111.)

In this case, trover will lie. Trover is the appropriate form. The Act giving the form employed in this case, also gives a form in trover. And hence, there is room for an inference, that the Legislature intended that some regard should be paid to forms — intended that cases should be put in the forms which they fitted.

Unless trover be required in such a case as this, there can be none in which it ought to be required. We are not prepared to say that there are not some cases in which the law requires trover.

And so, we affirm the judgment of the Court below.