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it is necessary (c)—1st, that the inn be a common inn (d); 2dly, the party ought to be a traveller or passenger (e); 3dly, the goods and chattels must be in the inn, or placed elsewhere by the landlord or his servants (ƒ); 4thly, there must be a default, express or implied, on the part of the innkeeper, and such default is to be imputed to him, where the loss or injury cannot be ascribed to any other known cause (g); and 5thly, the article stolen, &c., must be a moveable chattel (h). He is liable if the money of his guest be taken or lost (i).

If the goods be damaged or stolen whilst in the inn, either by the servants of the innkeeper or strangers, the innkeeper is liable; and he is responsible if his servants rob a guest (k).

If the goods of the guest be stolen by his own servant or companion (1), or from his own hands (m), or entirely through his own gross negligence (n), or from a room in the inn which

(c) See infra, n. (h).

(d) A London tavern and coffeehouse where beds, &c., are provided, is an inn, though no stages thereto, or stables belonging to the same; Thompson v. Lacy, 3 B. & Ald. 283; Jones v. Osborn, 2 Chitty, R. 484. But a mere coffee-house is not; Doe v. Laming, 4 Camp. 77.

(e) A person may be a guest though he go to an inn for mere temporary refreshment; Bennett v. Mellor, 5 T. R. 273; or merely leave a horse at the inn, though he himself lodge elsewhere; Gode v. Grindstone, 1 Salk. 388; 2 Lord Raym. 860. And the length of time for which a guest has resided seems not to affect his right as such, provided he live there in the transitory character of a guest; and not as a boarder under a special contract for board and lodging; Bac. Ab. Inn, C. 5; Barkhurst v. Foster, Salk. 388.

(ƒ) As in the road before the inn on a fair day, that being the place where the landlord usually put carriages on such days; Jones v. Tyler, 3 Nev. & M. 576; 1 Ad. & E. 522. Or from a barn, if treated and considered as a portion of the inn; Morning Herald, Dec. 6, 1839.

(g) Per Le Blanc, J., Burgess v. Clements, 4 M. & Selw. $12; Richmond v. Smith, 8 B. & C. 11. It is enacted by 6 Anne, c. 31, s. 6, (made

perpetual by 10 Anne, c. 14, s. 1,) that no action, suit, or process whatsoever shall be had, maintained, or prosecuted against any person in whose house or chamber any fire shall accidentally begin, or any recompence be made by such person for any damage suffered or occasioned thereby; any law, usage, or custom to the contrary notwithstanding." Semble, that this enactment protects an innkeeper from liability if a guest's goods be destroyed in the inn by an accidental fire.

(h) See Calye's case, & Co. R. 32 a; Fitz. N. B. 94 a, b; Bac. Ab. tit. Inns; 1 Burn's J., Alehouses, s. 16.

(i) Kent v. Shuckard, 2 B. & Ad. 803; Doorman v. Jenkins, 4 N. & M. 170; 2 Ad. & E. 256.

(k) Jones on Bailm. 95, 96; 1 Bla. Com. 430. In Richmond v. Smith, 8 B. & C. 11, Bayley, J., said, that he is prima facie liable for any loss not occasioned by an act of God, or the king's enemies. But trover does not lie; Williams v. Gesse, 3 Bing. N. C. 849; 5 Scott, 56, S. C.

(1) Cayle's case, 8 Co. 33 a; Burgess v. Clements, 4 M. & Selw. 310. (m) Per Lord Abinger, Sunbolf v. Alford, 3 M. & W. 254.

(n) Supra, note (1); Sanders v. Spencer, Dyer, 266. But this rule must be strictly construed. See id.; Bac. Ab. Inns, C. 4.

he used as a warehouse, or for purposes of trade, and of which he had the exclusive possession otherwise than as a mere guest (o), the innkeeper is not liable. But where a traveller went to an inn, and desired to have his luggage taken into the commercial room, to which he resorted, from which it was stolen; it was held that the innkeeper was responsible, although he proved, that according to the usual custom of the house, the luggage would have been deposited in the guest's bedroom, and not in the commercial room, if no order had been given respecting it. The defendant did not prove a notice to the plaintiff, that he would not be liable unless the goods were placed in the bedroom (p). And where an innkeeper refused to take charge of goods till a future day, because his house was full of parcels, and the owner afterwards stayed in the inn as a guest, and the goods were stolen during his stay, it was holden that the innkeeper was bound to make good the loss (q).

But if an innkeeper receive goods not in his character as such, but as a bailee, his liability as innkeeper does not attach (r).

We may here add, that the law compels an innkeeper to receive a traveller, if he, the innkeeper, have convenient and sufficient room for that purpose (s); and this though the traveller be travelling on a Sunday, or at a time of night after the innkeeper and his family have retired to rest; and it is not necessary that the traveller should communicate his name; or tender the price of his entertainment, if the innkeeper do not refuse to receive him without a payment in advance. But if a person come to the inn drunk, or behave in an improper or indecent manner, the innkeeper may refuse to admit him (t). And he is bound to provide meat and drink, on the prices being tendered, when they are ready for the guest (u). But he is not bound to supply post horses, although he have a licence to let them (x). The landlord of an inn has a particular lien on the goods of

(0) Farnworth v. Packwood, 1 Stark. 249, 251, note; Burgess v. Clements, 4 M. & Sel. 306.

(p) Richmond v. Smith, 8 B. & C. 9. (9) Bennett v. Mellor, 5 T. R. 273. (r) Hyde v. Trent Navigation Company, 5 T. R. 389; Jelly v. Clarke, Cro. Jac. 188.

(s) Jones on Bailm. 95; Elsee v. Gatward, 5 T. R. 143; Calye's case, 8 Co. R. 32; Coggs v. Bernard, Lord

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his guests for their board and lodging and for wine supplied to their order, whatever may be the amount, if such guests have their reason, and be not infants. So a landlord has a lien for money lent to his guest, if it were agreed at the time that the guest's goods should be a security for the sum; but he has no lien on the person of his guest, nor can he take off his clothes; and it seems doubtful if he can take his goods whilst in his manual possession (y).

2dly. Locatio Rei; by which the bailee gains the temporary use of the thing, and the thing is lent to him for hire (z).

This bailee is bound to use only an ordinary degree of care (a), and is not answerable for a loss by accidental fire (b).

The hirer of a horse is not liable for the ill treatment thereof by a regular farrier, whose attendance he requires (c). And it seems that gross unskilfulness or negligence must be proved to render the hirer liable, although he personally prescribed medicine for the animal; and that to support a case of negligence in using a hired horse, it is not sufficient to prove merely that the horse was returned with broken knees (d). The hirer of a horse is bound to discontinue the use of it, if it become exhausted, and refuse its food (e).

It has been held, that the hirer of a chaise and horses to go a journey, is not liable for an injury occasioned by the negligence or misconduct of the post boy (f).

But where a warehouseman employs a master porter to remove goods from his warehouse, and the master porter employs his own men and tackle, and through the negligence of the men the

(y) Proctor v. Nicholson, 7 C. & P. 67; Sunbolf v. Alford, 3 Mee. & W. 248, overruling dictum of Eyre, J., in Newton v. Trigg, 1 Show. 269.

(2) A contract for the hire of goods need not be in writing, unless it is to endure beyond one year from the making thereof.

(a) Jones on Bailm. 86; Cooper v. Barton, 3 Camp. 5, note. See however, Coggs v. Bernard, Lord Raym.

916.

(b) Longman v. Gallini, Abbott on Shipp. 5th ed. 259, note; Davy v. Chamberlain, 4 Esp. 229; Reading v. Menham, 1 M. & Rob. 234; but see M'Kenzie v. M'Leod, 10 Bing. 388; 4 Moo. & Sc. 249.

(c) Dean v. Keate, 3 Camp. 5, per Lord Ellenborough.

(d) Dean v. Keate, 3 Camp. 4; Cooper v. Barton, id. 5, note.

(e) Bray v. Mayne, Gow, R. 1.

(f) Dean v. Branthwaite, 5 Esp. R. 35; Laugher v. Pointer, 5 B. & C. 546; 8 Dowl. & R. 556; Croft v. Alison, 4 B. & Ald. 590; Bush v. Skinman, 1 B. & P. 409; Jones on Bailm. 88, 89; East India Company v. Pullen, 2 Stra. 690. Nor is the driver of a glass-coach, hired for the day, the servant of the party hiring it, so as to bring him within the statute relating to larceny by servants; Rer v. Hay don, 7 C. & P. 445. It is, however, a question for the jury. Brady v. Giles, 1 Moo. & R. 949.

tackle fails and the goods fall and injure a third person, the warehouseman is liable for the injury (g).

3dly. Locatio operis mercium vehendarum: and herein of carriers (h), public and private.

1. Who is a common carrier (i), and of his common law responsibility. 2. Of his liability under the statute 1 Will. IV. c. 68.

1. A common carrier is one who for hire undertakes the carriage of goods for any person, either by water or land; as the owner or master of a ship (k); a wharfinger, who undertakes to convey goods from his wharf to the vessel, in his own lighters (1); a mail contractor, or the proprietor of a common stage-coach, or waggon, barge, lighter, merchant ship, &c. (m).

And where an act of parliament enables a railway company, if they think proper, to use locomotive engines and carry passengers, goods and merchandize, making reasonable charges for the same, and they avail themselves of this permission, and become carriers, and accept goods for that purpose, without in any way limiting their responsibility, the common law duty is cast upon them as carriers, and they are not entitled to notice of action as for any thing done by them by virtue of the act (n).

(g) Randleson v. Murray, 3 Nev. & P. 239; 8 Ad. & E. 112, S. C.

(h) See Jeremy on the Law of Carriers; and 3 Chitty, Com. Law, 369.

(i) The keeper of a booking-office contracts that he will take care that a parcel be delivered to some carrier, to be conveyed to its destination, and it is not sufficient, to render him liable, to show that it never did reach its destination; Gilbart v. Dale, 5 Ad. & E. 546; 1 Nev. & Per. 22, S. C.

(k) Trent and Mersey Navigation v. Wood, 3 Esp. R. 127; 4 Dougl. 287, S. C. See the statute 26 Geo. 3, c. 86, which limits the liability of owners of ships. Liability of a ship-owner, though master, was in some respects apparently in the nature of a "charterer; Colvin v. Newberry, 8 B. & C. 166; and see Fenton v. Dublin Steam Company, 1 P. & Dav. 103. Meaning of exception of " perils of sea and act of God;" Buller v. Fisher, Peake's Addl. C. 183; Siordet v. Hall, 1 Moo. & P. 561; 4 Bing. 607.

(1) Morning v. Todd, 1 Stark. R. 72. (m) Coggs v. Bernard, Lord Raym.

918; Mors v. Slue, T. Raym. 220; Gisbourn v. Hurst, 1 Salk. 249, 282; Lovett v. Hobbs, 2 Show. 128; Forward v. Pittard, 1 T. R. 27; Brook v. Pickwick, 1 Bing. 218; Bac. Ab. Carrier; see recital of 1 Will. 4, c. 68. But a hackney-coachman is not liable as a common carrier, unless he receive money for the carriage, &c.; Upshare v. Aidee, 1 Com. R. 25. Nor is the postmaster-general a common carrier within the custom of the realm; Lane v. Cotton, 1 Lord Raym. 646; Whitfield v. Lord Le Despencer, Cowp. 754; Jones on Bailm. 109; Nicholson v. Mounsey, 15 East, 384; nor is a town carman whose carts ply near the wharfs, and who lets them by the hour, day, or job; Brind v. Dale, 8 C. & P. 207; 2 M. & Rob. 80, S. C.; or a person who conveys passengers only; Aston v. Heaven, 2 Esp. 533; Christie v. Griggs, 2 Camp. 79; Sharpe v. Grey, 9 Bing. 460; 2 Moo. & Sc. 621.

(n) Palmer v. Grand Junction Railway Company, 7 Dowl. P. C. 232; 4 M. & W. 749.

A common carrier is, by the ancient custom or common law of the realm, to prevent fraud, in the nature of an insurer; and at common law he is not excused or discharged in case of the loss of, or any injury to, the goods, unless it was occasioned by the act of God or of the king's enemies (o). He is therefore liable, at common law, though robbed (p); or the goods be destroyed by an accidental fire (q), or wrongfully seized by third persons (r). His duty to carry safely is independent of any contract, and no contract need be proved in an action on the case founded on the custom of the realm (s); and, therefore, where a declaration in case stated that the plaintiff delivered to the defendants, and the defendants accepted a package to be taken care of and carried and conveyed from L. to B., and there delivered to A. B., for reasonable reward, and thereupon it became the duty of the defendants to take due care, &c., in the conveyance of the said package; to which it was pleaded that the plaintiff did not deliver the package to the defendants; and at the trial the jury found a verdict for one of the defendants and against the other; it was held, that the declaration might be read as charging the defendants in tort on the general custom of the realm, and not on a contract; that the Court were bound so to read it after verdict, and to support the finding, though against only one of the defendants (s).

In Davis v. Garrett (t), the Court recognised the doctrine, that it is the implied duty of the owner of a vessel (u), whether a general ship, or hired for the special purpose of the voyage, to proceed, without unnecessary deviation, in the usual and custo

(0) Jones on Bailm. 104; Bul. N. P. 70; Coggs v. Bernard, Lord Raym. 918; per Parke, B. Palmer v. Grand Junction Railway Company, 7 Dowl. 245. The general law upon this subject is fully stated by the Court in Macklin v. Waterhouse, and Riley v. Horne, 2 M. & P. 319, 331, and 5 Bing. 212, 217, S. Cases. He is bound to convey if he have room; id. As to his lien, see Storr v. Crowley, M'Clel. & Y. 129; as to his charges, Winkfield v. Packington, 2 C. & P. 599; v. Jackson, Peake Addl. C.

185, 186. Consignee not in general liable where no bill of lading, Coleman v. Lambert, 5 M. & W. 502. As to proof that a party is a common car

rier, see Upston v. Slark, 2 C. & P. 598; and see Gilbart v. Dale, 5 Ad. & E. 543; 1 Nev. & P. 22.

(p) Jones on Bailm. 103; 1 Inst. 89, a; 1 Rol. Ab. 2. What not a loss by robbery, within an exception of robbery by special contract; Latham v. Stanbury, 3 Stark. R. 143.

(9) Forward v. Pittard, 1 T. R. 27; Hyde v. the Navigation Company from the Trent to the Mersey, 5 T. R. 389; Gatliffe v. Bourne, 5 Scott, 667; 4 Bing. N. C. 314.

(r) Gosling v. Higgins, 1 Camp. 451. (s) Pozzi v. Shipton, 1 P. & Dav. 4. (t) 4 M. & P. 540; 6 Bing. 716, S. C. (u) The same rule would, it seems, apply to a carrier by land.

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