Browning v. Bancroft

Hubbard, J.

It is objected, in this case, that there was a discontinuance of the suit in the court of common pleas, and that the court erred in directing the action to be brought forward.

We consider this point settled in the case of Commonwealth v. Moore, 3 Pick. 194, where it was held that the court had full-power to direct the continuances to be entered, and the cause to be Drought forward. See also Ely v. Ball, 8 Pick. 352. And except in cases of gross negligence, it would be the duty of the court to direct the clerk to enter the continuances, and reinstate the case upon the docket. Such a power is necessary for the proper regulation of the practice of the court from which appeals are made, and to which causes are remitted for further *283proceedings. The action is not discontinued in consequence of its removal to the supreme judicial court. And when it is remanded back, it is not the commencement of a new suit> but merely the restoration of the former case; and it must therefore be brought forward by continuances, if more than one term has intervened during the time it was pending in this court. But where the party, whose duty it is to bring the action forward, is guilty of gross neglect in regard to it, he shall be held to have discontinued the suit. But of that fact the court of common pleas are the judges.

But the exception most relied upon is, that the commencement and prosecution of the action of assumpsit, by the plaintiffs, against Sleeper, affirmed the contract, and that, in consequence thereof, this action for the goods themselves cannot be maintained. But we think the case was put to the jury under correct instructions, that if they were satisfied, upon the evidence, that the action of assumpsit was only brought to recover the value of the goods sold by Sleeper, and which the plaintiff could not reach by his action of replevin, then there was no affirmance of the contract. This is not the case of an affirmance of any part of the original contract. If it were, it would present a very different question from the one now before us. But it is a pursuing of the appropriate remedy to obtain the value of those goods which had been obtained by fraudulent representations, of such a character as to avoid the sale; and which goods, in consequence of the disposition made of them, the plaintiff could not secure by his action of replevin. The form of action here adopted is often the most convenient, where only damages can be recovered ; and the mere adoption of the form does not, under the circumstances, change the nature of the plaintiffs’ claim, nor affect their right to recover specifically the goods which the party had not sold when his fraud was discovered. In the case cited, Butler v. Hildreth, 5 Met. 49, the party, with a knowledge of all the circumstances, elected to pursue his remedy on the contract, and not to resort to his action on the case for the tort committed ; and the court held the plaintiff, in consequence of such knowledge, bound by his elec*284tion. But here the jury directly negative such an election, or that the plaintiffs in any way affirmed the contract. We are clearly of opinion, that the charge of the learned judge was correct. The exceptions are therefore overruled, and there must be

Judgment on the verdict.