Wilkinson v. Moseley
Supreme Court of Alabama
Error to the Circuit Court oí Montgomery. Tried before-the Hon. Thomas A. Walker. This was an action by the defendant against the plaialii? ire •error. The. declaration contains two counts.
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Error to the Circuit Court oí Montgomery. Tried before-the Hon. Thomas A. Walker. This was an action by the defendant against the plaialii? ire •error. The. declaration contains two counts. The first alleges in substance that on the first day of February 1844, the- plaintiff hired to the defendant a> negro girl, by the name of Adaliae, for one year, for. a reasonable reward to be paid to the said plaintiff for her services, and in Consideration thereof,, the defendant un~ dertook and promised that while said girl was under his charge and control according to the terms of hiring, he would…
1Opinion of the CourtParsons, J.
It is often a matter of difficulty to determine whether an action is in form ex contractu or ex delicto. Perhaps the best criterion is this; if the cause of action, as stated in the declaration, arises from a breach of promise, the action is ex contractu; but if the cause of action arises from a breach of duty, growing out of the contract, it is in form, ex delicto and case. *291For instance, if the declaration allege the hiring of a horse to ride to a certain place, and that the defendant rode him so immoderately that he died, this would be case; for the contract of hiring imposed upon him the…
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