Berry v. Montgomery & West Point Railroad

McCay, J. Two questions are presented by this record : 1st. Can the defendant be sued in Georgia, except like other foreign corporations, by attachment? 2d. Is the cause of action, on which the plaintiff sues, one over which the Courts of this State have been denied jurisdiction by the, Constitution of 1868 ? 1. The defendant is a corporate body in this State by the Act of 1837. Pamphlet 201. The Alabama corporation, by its corporate name, and in its corporate character, is, by the Act of 1837, chartered as a body corporate in this State, with the right to contract and to sue, etc. Whatever may be true as to contracts made and to be performed by this Company in Alabama, and with persons not citizens of this State, we are satisfied that under this charter a citizen of Georgia may sue the corporation in this State on a contract, or for a wrong. The Company is expressly clothed with power to sue and be sued in this State, and we hold that a citizen of this State may sue the Company on a contract made with him, or for a wrong done to him, no matter where. 2. The defendant contends that this is a suit on a debt, the consideration of which is a slave, and that under the Constitution of 1868, the Courts of this State have no jurisdiction thereof. This Court has decidéd at this term, in several cases, that the Courts have no jurisdiction of debts, the consideration of which is slaves, or the hire thereof, and if this suit is founded on such a debt, the plea of the defendant below is good. It is contended, however, that this cause of action is for a tort, which, in the very nature of the case, has no consideration, that it is not a debt, the consideration of which was a [556] slave. Is not the whole foundation of this suit a contract ? The defendant had the custody, and the right to the custody, of this negro for a year, but they were under an implied, if not an express, contract to be careful of him, and to return him at the end of the year. Essentially the right of the plaintiffs consists in the defendants having broken their contract. It- is true they have a right by law to sue upon either the tort or the contract. But we have held that this right does not change the nature of the case. It is still a debt. In the case of Rockwell vs. Proctor, (ante, page 105,) this Court held that the obligation of an innkeeper to make good an article of baggage belonging to one of his guests and lost by the negligence of the landlord’s servant, was a debt, and eould be sued upon in a Justice Court, which had no jurisdiction of torts. We think these cases are analogous. In both cases the right of action is founded on the implied contract to take good care of the thing entrusted. We are of opinion, therefore, that the cause of action in this case was a debt, and as the whole consideration was a slave, we hold in accordance with our previous rulings, that the Courts of this State have, under the new Constitution, no jurisdiction to enforce it. The plain meaning of the Constitution is, that one shall not recover from another a debt, the consideration of which, the foundation of which, is a slave. It is because the plaintiff has, by the defendant’s breach of his contract, lost a slave that he claims a right to recover. The slave is in this case the foundation of the action. The value of the slave is what he thinks he has a right to recover, and we cannot escape from the conclusion that this is a debt, the consideration of which is a slave. The distinction between a tort and a debt is, under our system of actions, more fanciful than real. It rarely happens that the plaintiff sues¡for the very thing agreed upon. The action is almost always for damages for the non-performance of an express or implied contract. The action of assumpsit is in terms an action upon the case for damages, and, by our code of practice, if a party sets forth plainly and distinctly in his [557] declaration the facts upon which "his action is founded, the Court will not hold itself bound to the name by which he calls it. As we have said, the foundation of this action is failure of the defendant to keep its implied contract of carefulness and good usage of the plaintiff’s slave, and is, therefore, a breach of the contract, a debt, and comes within the constitutional prohibition. Even if there were no contract between the parties, there is doubt if the word debt is not used in the sense of “ eause of action.” We do not, however, decide that question, as it is not necessary in this case. Judgment affirmed.