Hammond, J.
When this case was before the court at a former day on a motion to replead, the motion was granted. Whittenton Manuf’g Co. v. Memphis & Ohio River Packet Co. 19 Fed. Rep. 273. To the declaration then filed the defendants demurred on several grounds, all of which have been cured by amendment, except one. This is: “Second, because said count does not make profert of the bill of lading alleged to have been executed by defendant.” The law of Tennessee on the subject of “profert” is peculiar. The Code enacts: “Profert shall be required as heretofore, and a demurrer may be filed for want thereof.” Tenn. Code, (T. &. S.,) § 2893. This means that the act of 1819, c. 27, § 2, (Car. & Nich. 551,) was continued in force. It enacts: “In all eases * * * the plaintiff shall be compelled to produce any instrument of writing, not under seal, within the power of the party to produce, upon which his, her, or their action is founded; * * * and, if the cause is pending in a court of record at the return term, make profert of the same in his, her, or their declaration, unless longer time is given.”
Now, at common law, profert being required only of sealed instruments “under which the party claimed title,” it became settled under [899]*899this act that its only effect was to put unsealed instruments upon which the “action is founded” upon the same footing as profert of sealed instruments at common law. Term. Code, § 2893, and notes. Gardner v. Henry, 5 Cold. 458; 3 Meigs, Dig. (2d Ed.) 2184. At common law a deed stated merely as an inducement in pleading did not require profert. 1 Chit. Pl. 265; Gould, PI. 414; Bouv. Diet, tit. “Profert;” Banfield v. Leigh, 8 Term R. 573. It is not necessary, for example, in a suit upon a bond, to make profert of a deed for the performance of the covenants of which the bond was given. Sneed v. Wister, 8 Wheat. 690. Nor in a suit upon coupons is it necessary to make profert of the bond from which tho coupons were taken. Nashville v. Bank, 1 Baxt. 402; Nashville v. Insurance Co. 2 Baxt. 296.
Mi". Sohouler, in his excellent work on “Bailments,” says of the form of action against a carrier that it may bo ex delicto or ex contractu, at the election of the plaintiff. And, “where the transaction and character oí tho loss require the plaintiff to show a contract, express or implied, with the carrier, to support his action, contract is the true remedy; otherwise the preferable form of action is tort.” Schouler, Bailm. 557; 2 Add. Torts, § 1415; 2 Bac. Abr. tit. “Carriers,” B, 152. The action ex delicto is for a breach of duty founded on the custom of the realm, and it makes no difference that there is a contract by the carrier out of which tho duty arises, unless there is something special in the contract upon which the plaintiff must rely for his action, in which case his suit necessarily must be ex contractu. In the ordinary contract the plaintiff has his choice as to the form of action he will use; and whore the action is ex delicto the carrier may plead in defense any stipulations of a contract which lias relieved him from the alleged breach of duty. Schoulor, Bailm. 575; Hutch. Carr. § 748.
In New Jersey Nav. Co. v. Merchant’s Bank, 6 How. 344, 381, the court say: “The general liability of the carrier, independently of any special agreement, is familiar. He is chargeable as an insurer of the goods, and accountable for any damage or loss that may happen to them in the course of conveyance, unless arising from inevitable accident,” etc. Again, “the burden of proof lies on the carrier, and nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employment.”
Mr. Hutchinson, in his able work, also discusses this subject, and states the difficulties, even under the old practice, of determining tho proper form of action to be brought, and, when brought, whether it he one or the other of the two forms allowable. He says that until Dale v. Hall, 1 Wils. 281, the form of action was ex delicto, and that case decided that, even where it is on tho contract, the declaration is the same in effect as if it had been upon the custom. Hutch. Carr. § 737 et seq. He calls attention to the perplexities formerly existing in [900]*900distinguishing one form of action from the other, and says: “The declarations of the two kinds of actions, according to approved formulas, were so nearly alike, that in many cases the astutest judges became perplexed in their efforts to find out to which class the declaration belonged.” Id. § 744 et seq.
In the case already cited from the supreme court, Mr. Justice Daniel,,in his dissenting opinion, considers more at large than does the opinion of the court, the distinctions between the action against a carrier ex delicto and ex contractu. So do the concurring Justices Catron and Woodbury, and the general result of that very instructive case on this subject is that, notwithstanding-there was in that ease, yet, in a large sense, a suit founded upon a special contract of carriage, in the very nature of the action it was such that, essentially, whatever its form, it was “founded in tort,” and would, therefore, support the jurisdiction of the admiralty. The majority opinion thought the jurisdiction existed even if “founded on the contract,” but the two concurring justices above named preferred to rest it on the foundation of. tort. New Jersey Nav. Co. v. Merchants’ Bank, 6 How. 344, 394, 410, 427. I forbear to quote much of these opinions that would be applicable here, and refer to another .case where the same rules of discrimination there adopted were .applied in testing the form of action, but with an inverse result.
In Bryant v. Herbert, 3 C. P. Div. 189, the question was whether the action of detinue is “founded on contract” or “founded on tort,” and as one ground of the judgment it was held that although in form the action is one for a wrong done, in theory it is founded on a contract, and not on a wrong independently of contract. These two eases establish that in solving a question like this we are to look to the requisite nature of the remedy the plaintiff is entitled to on the facts he states, rather than any form his declaration may assume, though, of course, we cannot wholly disregard the form of the declaration.
Now, if this matter was before one of so much difficulty, there has been only an increase of it since our statutes abolished all forms of action. Like the distinctions between law and equity, it may be doubtful if it is possible to wholly obliterate those between contract and tort, they do so inhere in the very bone and flesh of our law; and certainly the legislators have not always furnished us with a legislative substitute for those which they have destroyed, nor yet have they destroyed the whole, as this case well illustrates. Perhaps ours 'did not think, when they required proferí of any instrument of writing upon which “the action is founded,” how the statute abolishing all forms of action had removed the surest guide we had,—the indicia of the common-law forms, namely,—to discover whether a plaintiff, when he brings his suit, elects to bring it on the bill of lading, or on “the custom of the realm;” for, after all, in a case like this, we are searching for that election, pure and simple, and nothing else.
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Hammond, J.
When this case was before the court at a former day on a motion to replead, the motion was granted. Whittenton Manuf’g Co. v. Memphis & Ohio River Packet Co. 19 Fed. Rep. 273. To the declaration then filed the defendants demurred on several grounds, all of which have been cured by amendment, except one. This is: “Second, because said count does not make profert of the bill of lading alleged to have been executed by defendant.” The law of Tennessee on the subject of “profert” is peculiar. The Code enacts: “Profert shall be required as heretofore, and a demurrer may be filed for want thereof.” Tenn. Code, (T. &. S.,) § 2893. This means that the act of 1819, c. 27, § 2, (Car. & Nich. 551,) was continued in force. It enacts: “In all eases * * * the plaintiff shall be compelled to produce any instrument of writing, not under seal, within the power of the party to produce, upon which his, her, or their action is founded; * * * and, if the cause is pending in a court of record at the return term, make profert of the same in his, her, or their declaration, unless longer time is given.”
Now, at common law, profert being required only of sealed instruments “under which the party claimed title,” it became settled under [899]*899this act that its only effect was to put unsealed instruments upon which the “action is founded” upon the same footing as profert of sealed instruments at common law. Term. Code, § 2893, and notes. Gardner v. Henry, 5 Cold. 458; 3 Meigs, Dig. (2d Ed.) 2184. At common law a deed stated merely as an inducement in pleading did not require profert. 1 Chit. Pl. 265; Gould, PI. 414; Bouv. Diet, tit. “Profert;” Banfield v. Leigh, 8 Term R. 573. It is not necessary, for example, in a suit upon a bond, to make profert of a deed for the performance of the covenants of which the bond was given. Sneed v. Wister, 8 Wheat. 690. Nor in a suit upon coupons is it necessary to make profert of the bond from which tho coupons were taken. Nashville v. Bank, 1 Baxt. 402; Nashville v. Insurance Co. 2 Baxt. 296.
Mi". Sohouler, in his excellent work on “Bailments,” says of the form of action against a carrier that it may bo ex delicto or ex contractu, at the election of the plaintiff. And, “where the transaction and character oí tho loss require the plaintiff to show a contract, express or implied, with the carrier, to support his action, contract is the true remedy; otherwise the preferable form of action is tort.” Schouler, Bailm. 557; 2 Add. Torts, § 1415; 2 Bac. Abr. tit. “Carriers,” B, 152. The action ex delicto is for a breach of duty founded on the custom of the realm, and it makes no difference that there is a contract by the carrier out of which tho duty arises, unless there is something special in the contract upon which the plaintiff must rely for his action, in which case his suit necessarily must be ex contractu. In the ordinary contract the plaintiff has his choice as to the form of action he will use; and whore the action is ex delicto the carrier may plead in defense any stipulations of a contract which lias relieved him from the alleged breach of duty. Schoulor, Bailm. 575; Hutch. Carr. § 748.
In New Jersey Nav. Co. v. Merchant’s Bank, 6 How. 344, 381, the court say: “The general liability of the carrier, independently of any special agreement, is familiar. He is chargeable as an insurer of the goods, and accountable for any damage or loss that may happen to them in the course of conveyance, unless arising from inevitable accident,” etc. Again, “the burden of proof lies on the carrier, and nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employment.”
Mr. Hutchinson, in his able work, also discusses this subject, and states the difficulties, even under the old practice, of determining tho proper form of action to be brought, and, when brought, whether it he one or the other of the two forms allowable. He says that until Dale v. Hall, 1 Wils. 281, the form of action was ex delicto, and that case decided that, even where it is on tho contract, the declaration is the same in effect as if it had been upon the custom. Hutch. Carr. § 737 et seq. He calls attention to the perplexities formerly existing in [900]*900distinguishing one form of action from the other, and says: “The declarations of the two kinds of actions, according to approved formulas, were so nearly alike, that in many cases the astutest judges became perplexed in their efforts to find out to which class the declaration belonged.” Id. § 744 et seq.
In the case already cited from the supreme court, Mr. Justice Daniel,,in his dissenting opinion, considers more at large than does the opinion of the court, the distinctions between the action against a carrier ex delicto and ex contractu. So do the concurring Justices Catron and Woodbury, and the general result of that very instructive case on this subject is that, notwithstanding-there was in that ease, yet, in a large sense, a suit founded upon a special contract of carriage, in the very nature of the action it was such that, essentially, whatever its form, it was “founded in tort,” and would, therefore, support the jurisdiction of the admiralty. The majority opinion thought the jurisdiction existed even if “founded on the contract,” but the two concurring justices above named preferred to rest it on the foundation of. tort. New Jersey Nav. Co. v. Merchants’ Bank, 6 How. 344, 394, 410, 427. I forbear to quote much of these opinions that would be applicable here, and refer to another .case where the same rules of discrimination there adopted were .applied in testing the form of action, but with an inverse result.
In Bryant v. Herbert, 3 C. P. Div. 189, the question was whether the action of detinue is “founded on contract” or “founded on tort,” and as one ground of the judgment it was held that although in form the action is one for a wrong done, in theory it is founded on a contract, and not on a wrong independently of contract. These two eases establish that in solving a question like this we are to look to the requisite nature of the remedy the plaintiff is entitled to on the facts he states, rather than any form his declaration may assume, though, of course, we cannot wholly disregard the form of the declaration.
Now, if this matter was before one of so much difficulty, there has been only an increase of it since our statutes abolished all forms of action. Like the distinctions between law and equity, it may be doubtful if it is possible to wholly obliterate those between contract and tort, they do so inhere in the very bone and flesh of our law; and certainly the legislators have not always furnished us with a legislative substitute for those which they have destroyed, nor yet have they destroyed the whole, as this case well illustrates. Perhaps ours 'did not think, when they required proferí of any instrument of writing upon which “the action is founded,” how the statute abolishing all forms of action had removed the surest guide we had,—the indicia of the common-law forms, namely,—to discover whether a plaintiff, when he brings his suit, elects to bring it on the bill of lading, or on “the custom of the realm;” for, after all, in a case like this, we are searching for that election, pure and simple, and nothing else. Perhaps in some cases the pleader does not know or care, and in fact [901]*901males no election whatever, since he may do either, or both, or neither, under our Code. Thus:
“ Whenever the facts of the caso entitle the plaintiff to sue for a breach of contract, or, at his election, for the wrong and injury, ho may join statements of his cause of action in both forms, or cither.” And “all wrongs and injuries to the property and person in which mone'y only is demanded as damages ma\ be redressed by an action on the facts of the case.” Tenn. Code, §§ 2747, 2748, 2884, 2894, 2896.
Besides, the Code gives us a form of declaration “against a common! carrier, ” as follows:
“ The plaintiff sues the defendant for-■ dollars as damages for the failure to delivor certain goods in good condition, viz., ['describing them,J received by him as a common carrier, to be delivered to the plaintiff at--, for a reward, which ho delivered damaged.” Tenn. Code, §2939, No. 13; Oar nth. Hist. Suit, 146.
The plaintiff here does not use this form, which makes no proferí of any bill of lading, or rotors to any contract, but sues on “the facts of the case.” How is it possible under this legislation for the “asfcutest judges” to tell whether the action is on the contradi or the wrong; or, rather, whether the pleader uses the one or the other, or both, in his wholly informal count “on the facts?” It is not, and the best that can be done is to lake the plaintiff’s word for it; and when his counsel says in his argument and brief that he sues in tort, to hold him to that form of action and its consequences. Fortunately, however, we are not left’wholly to flu's solution of the difficulty. If lias been decided that the averment of a promise does not make the declaration one in contract, nor the use of the words “agreed,” “undertook,” or “promised.” Hutch.- Garr. 744; Smith v. Seward, 3 Pa. St. 342; Corbett v. Packington, 6 Barn. & C. (13 E. C. L.) 268. These cases say the averment must bo one of a promise, and a consideration for it, to make it a count on contract; but there may be an averment of a consideration or compensation for assuming the duty imposed by law, or a consideration connected with a contract pleaded only as an inducement. All the casos show this, unless the consideration averred is for a promise to do something beyond the common-law duty, as was the fact in the case last cited.
Here there is no averment of a contract beyond the common-law duty as contained in the bill of lading or consideration for such a promise. They have also abolished forms of action in England, and have a statute analogous to this, giving costs only on certain conditions when the action is “founded on contract,” and only on certain other conditions when it is “founded in tort.” In a series of cases under that statute the question whether in a given declaration the plaintiff has elected to sue on contract or tort has been gone over, with some conflict of opinion. While they leave the matter still in doubt, and evidently, as Mr. Scliouler says, indicate a desire to narrow the plaintiff’s election, if possible, they come at last to the rule already indicated in the decision I haye cited from the supreme court [902]*902of the United States in determining the admiralty jurisdiction, and suggested by Mr. Hutchinson, that the innate and habitual form of action on the ordinary contract for carriage, for a breach of the duty to keep the goods safely without loss by negligence, is “founded in tort,” and the declaration will be so construed unless the special features' of the case show it to have been “founded in contract.” Sehouler, Bailm. 558, note 1; Hutch. Carr. §§ 747, 748, 749; Tattan v. Great Western R. Co. 2 El. & El. (105 E. C. L.) 844; Baylis v. Lintott, 8 C. P. 345; Pontifex v. Midland R. Co. 3 Q. B. Div. 23; Fleming v. Manchester, etc. Ry. Co. 4 Q. B. Div. 81; Bryant v. Herbert, 3 C. P. Div. 189; Foulkes v. Metropolitan Ry. Co. 4 C. P. Div. 267, 278; 2 Chit. Pl. 651, 667; Oliv. Prec. 371.
Examined in the light of these authorities, this declaration must be taken to have expressed the election of the plaintiff to bring an action “founded in tort,” and therefore not to be an “action founded” upon the bill of lading. Because (1) it isa joint action against the demurrant, and other defendants who are not alleged to have joined in the bill of lading. (2) The plaintiff does not make profert of the bill of lading; and, if this should seem to beg the question, it should be remembered that our inquiry is a peculiar one in this connection, being limited to determining whether the plaintiff has, in fact, elected to sue in toft, or on the contract contained in the instrument; therefore, we may look to this want of profert as a circumstance to 'show his state of mind. Hutch. Carr. § 749, last clause. (3) The count seems to aver an agreement not alleged to be in writing,—whether as an inducement or otherwise is immaterial, since it is not within the statute requiring profert,—disconnected with the bill of lading. Carroway v. Anderson, 1 Humph. 61. (4) The allegations about the bill of lading seem to be made by way of inducement to the general cause of action, and not as to the foundation of it. (5) The breaches alleged seem to be of a joint “agreement,” other than that of the demurrant by the bill of lading. (6) Naturally, the action would be in tort rather than contract. Hutch. Carr. §§ 747, 748.
Moreover, the plaintiff, by resisting this demurrer, and not amending to offer profert, as it might at will, indicates an election to proceed in tort, and not upon the bill of lading. Inferentially, this count “on the facts” was drawn with that intent; but if it was not so drawn, in fact, I know of no rule of law, presented as this question is here presented, and within the narrow limits prescribed by the inquiry we are making, why the plaintiff might not now or at the trial elect to proceed in tort. If it had sued in contract and made profert, it might amend and proceed in tort; and why may it not so treat an ambiguous declaration, if this be of that character?
Demurrer overruled.