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CH. XIV. s. 4. to the pawnbroker within three days, and after this production he Bailment in will be liable if he delivered the pledge to a person producing the

Pledge (Paunbrokers original ticket (e). Act).

The pawnbroker is by sect. 27 responsible, if the goods pawned Fire.

be destroyed by accidental fire (S), and if he purchases except at Burlem v. Attenborough.

a public auction an article pledged to him, is guilty of an offence against the Act (sect. 32).


Sect. 5.Bailments for Reward to Bailee.

(a) Generally. A bailee with whom goods are bailed, that work may be performed thereon or with respect thereto, for pecuniary or other reward, is bound not only to perform his contract as to the work to be done, but also to use ordinary diligence in preserving the property entrusted to him (g). Accordingly he is bound to exert himself, in order to protect the thing bailed from any unexpected danger to which it may be exposed (h). So, in Clarke v. Earnshaw (1), where A. entrusted B., who was a chronometer maker, with a chronometer to be repaired, and B. suffered his servant to sleep in the shop in which it was deposited: he was held liable to A. for its value-B.'s servant having stolen it, and he at the time having deposited his own watches in a more secure place.


(b) Wharfingers. And so, where a wharfinger takes upon himself the mooring of vessels which are sent along his wharf, he is liable for any accident which may occur to such a vessel, from her being negligently moored (k), or if owing to the uneven bed of the river the vessel is injured when she takes ground at the ebb ().

(c) Warehousemen. So, a warehouseman is liable for any loss which is occasioned by the want of ordinary care on his part (m); and it is said that, in case of a loss, it lies on him to acquit himself, by showing that (e) Burslem v. Attenborough (1873),

Warel man.

138 ;

10 R. R. 660. L. R., 8 C. P. 122 ; decided upon the (i) Clarke v. Earnshaw (1818), Gow, corresponding sects. 15 and 16 of 39 & 40 30 ; 21 R. R. 790. Geo. 3, c. 99.

(k) Wood v. Curling (1847), 16 M.&W. (f) 35 & 36 Vict. c. 93, 9. 27. This 628, Ex. Ch. was considered doubtful under the old (1) The Moorcock (1889), 14 P. D. 64, Act. See R. v. Cording (1832), 4 B. & Ad. C. A.; The Calliope (1889), 14 P. D. 198.

138, C. A. ; reversed on the facts, [1891] (9) Jones on Bailm. 91; Finucane v. A. C. 11; The Apollo, [1891) A. C. 499. Small (1795), 1 Esp. 315; and seo Ross (m) Garside v. Trent Navigation Co. v. Hill (1846), 2 C. B. 877, 890.

(1792), 4 T. R. 581 ; Cailif v. Danrers (h) Leck v. Maestacr (1807), 1 Camp. (1792), Peake, 114.

he was not in fault (n). But the liability of a dock company or CH. XIV. s. 5, sufferance wharf where goods have been landed and warehoused Bailments for

Reward to by the shipowner under the provisions of the Merchant Shipping Bailee Act, 1894, 57 & 58 Vict. c. 60 (which were intended for the Warehouse

men). protection of the shipowner that he might be able to unload his ship and still keep his lien for freight), is exactly the same as that of the shipowner (o). And where the wharfinger with whom goods have been warehoused carelessly makes a representation to the effect that goods are at his warehouse, and persons act upon that representation by buying such goods, which, as a matter of fact, had been long previously lost; the wharfinger will be liable to an action by the person who has bought the title to the non-existent property, as acting on such representation is the natural consequence, and the measure of damages will be the value of the goods (p).

(d) Agister.

[See Wyatt-Paine on Bailments, at p. 87.] The common law duty of a bailee with whom cattle are left to Agister. be fed for reward on a system called agistment is merely to take reasonable care of them ; “ not to take care of and redeliver them to the bailor” (q). But the bailee will be guilty of a breach of this duty, if he put the cattle in a place where they are exposed to the attack of a mischievous animal, even although he did not know that the animal was mischievous (r). If he leave the gate of his field open, and the cattle stray out and are stolen, he must make good the loss (s). He has no lien, for he merely feeds without expending skill (t). By sect. 45 of the Agricultural Holdings Act, 1883, where live Special

protection stock belonging to another person has been taken by the tenant

of agisted of an agricultural or pastoral holding to be fed at a fair price, it cattle from

distress. may not be distrained for rent where there be other sufficient distress to be found; and if it be so distrained by reason of other sufficient distress not being found, the owner may redeem it by paying to the distrainer a sum equal to such price (u).

(e) Livery-stable Keepers. Where a livery-stable keeper undertakes, for reward, to receive Livery-stable a carriage and lodge it in a coach-house, he is bound to take keeper.

(n) Per Gurney, B., Mackenzie v. Cox 79. (1840), 9 C. & P. 632.

(7) Broadwater v. Blot (1817), Holt, (0) Barber v. Meyerstein (1870), L. R., N. P. C. 547 ; 17 R. R. 677. 4 H. L. 317 ; Glyn, Mills & Co. v. East and (8) Jackson v. Cummins (1839), 5 West India Dock Co. (1882), 7 App. Cas. M. & W. 342. 591.

(1) Corbett v. Packington (1827), 6 (p) Seton v. Lafone (1887), 19 Q. B. D. B. & C. 268. 68, C. A.

(u) Agricultural Holdings Act, 1883, (9) See Smith v. Cook (1875), 1 Q. B.D. 46 & 47 Vict. c. 61, s. 45.


CH. XIV. 5, 6. reasonable care of the carriage, and also that any building in Bailments for which it may be deposited is in a proper state, so that the Reward to

carriage may be reasonably safe (x). The livery-stable keeper, (Lirery-stalle Keepers).

unless also an innkeeper, has no lien on the horse for keep or

disbursements (y). Auctioneer It was once held that an auctioneer having a horse for sale having horse to use till

with liberty to use it until sold, may not recover from his employer sold.

anything for injury to the horse by the negligence of a stranger, inasmuch as he is under no liability to the employer for the injury (z), but this is no longer law (a).

Innkeeper. Liability of, at common law.

(f) Innkeepers. The liability of an innkeeper, like that of a common carrier, and for the same obvious reason, is greater than that of other bailees in respect of the goods bailed to him. Beyond doubt, as was laid down in Calye's case (b), he is liable at common law for all loss, &c., of the goods of his guest happening by any negligence of himself or his servants, and there is a presumption that where loss occurs, it results from such negligence; but it does not seem to be quite clear upon authority whether such presumption is rebuttable or not.

To charge the innkeeper on the custom or common law of the realm, for the loss of the goods of his guest, it is necessary : 1st. That the inn be a common inn (c); 2ndly. That the guest be a trareller or passenger (d). But it appears that if a servant, travelling on his master's business, come to an inn with goods, the property of his master; and such goods are there lost by the innkeeper's default; the master may have his action against the innkeeper (e). 3rdly. The goods and chattels must be in the inn. But an innkeeper is liable for the goods of a guest, which were not actually within the inn at the time they were taken ; provided they were so taken whilst under the defendant's protection as an innkeeper (f). 4thly. There must be a defect on the part of the innkeeper'; but the cases show that there is a

(0) Scarle v. Laverick (1874), L. R., 9 Q. B. 122.

(y) Juson v. Etheridge (1833), 1 C. & M. 743; Orcharel v. Rackstravo (1850), 9 C. B. 698.

(s) Claridge v. South Stafforilshire
Tramway Co., (1892) 1 Q. B. 422.

(«) The Wink field, (1902] P. 42, C. A.
(6) Calye's case (1584), 8 Co. 32 a.

(c) A lodging. or boarding - house
keeper does not undertake, by implica-
lion of law, to take even dne and proper
care of a guest's baggage; Holder v.

Soulby (1860), 8 C. B., N. S. 254.

The paid manager of an hotel company cannot be sued, for although the licence was taken out in his vame, which was painted over the door, the company are the real inukeepers ; Dixon v. Birch (1873), L. R., 8 Ex. 135.

(d) R. v. Rymer (1877), 2 Q. B. D. 136 ; and see p. 380, infra.

(c) Beedle v. Morris (1610), Cro. Jac. 224 ; Bac. Abr. Inns (C.) 5.

(j') Joncs v. Tyler (1834), 1 A. & E. 522.

“ defect” wherever there is a loss not arising from the guest's CH. XIV. s. 5. negligence, the act of God or the King's enemies (g). And

Bailments for

Reward to 5thly. The article lost must be a movable (h). And an innkeeper Bailee

(Innkeepers). is liable if the money of his guest be taken or lost (i).

In Dawson v. Chamney (k) the horse of a guest was kicked in Extent of the stable by another horse, and the innkeeper having given

liability. proof of such attention and skilful management as to convince the jury that the damage could not have been occasioned by his negligence, the Court held that such proof took away the ground of action "according to all the authorities ;” but both Cashill v. Wright (I), and, more strongly, Morgan v. Rarcy (m), seem to be to the effect that an innkeeper, though guilty of no negligence but even diligent, is liable for loss not arising from the negligence of his guest, the act of God or the King's enemies. Dawson v. Chamney, however, was followed in Angus v. McLachlan (n), in which it was held that an innkeeper retaining the goods of his guest by virtue of lien for an unpaid bill, is not bound to use greater care in their custody than he uses as to his own goods of a similar description, and was not liable for damage to certain furs and wearing apparel by moths or mice. But the preponderance of authority appears to be against Dawson v. Chamney, and Angus v. McLachlan appears to be distinguishable on the ground that an innkeeper retaining his guest's goods by virtue of lien is only a gratuitous bailee, and therefore no longer subject to the ordinary liability of an innkeeper. The innkeeper is of course responsible if his servants rob a guest (v).

To fix the innkeeper with liability, the guest need not stay the Length and night, or intend to stay the night, and an innkeeper has been

guest's stay. held liable for the loss of the overcoat of a guest using his dining. Orchard v. room—much resorted to for refreshment purposes only—the Bush & Co. overcoat having been put by the guest in a place where coats were ordinarily kept in that room (p). The innkeeper, however, had been held not liable in a case where the guest used the railway refreshment room under the management of the innkeeper, whose

(9) Per Cur., Morgan v. Rarcy (1861), (1) Kent v. Shuckard (1831), 2 B. & Ad. 6 H. & N. 265, 277, distinguishing, or 803; Doorman v. Jenkins (1834), 2 A. & E. perhaps dissenting from, Dawson v. 256. Chamney (1813), 5 Q. B. 164 ; per (k) Dawson v. Chamncy (1843), 5 Q. B. Bayley, J., Richmond v. Smith (1828), 8 164, B. & C. 9.

(1) Cashill v. Wright (1856), 6 E. & B. The fact of the innkceper being un. 891. able to attend to his business, by (111) Morgan v. Rarey (1861), 6 H. & N. sickness or the like, does not excuse 265. bim. Cross v. Andrews (1598), Cro. El. (n) Angus v. McLachlan (1883), 23 522,

Ch. D. 330, per Kay, J. (h) See Calyc's case (1584), 8 Co. 32 a ; (0) Jones on Bailm, 95, 96 ; and see 1 Sm. L. C., from which it appears that Dixon v. Birch (1873), L. R., 8 Ex. 135. deeds, &c., are included, but there is no (1) Orchard v. Bush & Co., [1899] 2 liability for personal damage.

Q. B. 284.

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CH. XIV. s. 5.

servant had locked up the guest's luggage, part of which was lost, Bailments for at his request in an adjacent room (q).

However this may be, it is well settled that the default of the (Innkeepers).

guest excuses the innkeeper. Thus, if the goods of the guest be Negligence, &c., of guest.

stolen by his own servant or companion (r); or if the guest be guilty of negligence which conduces to the loss—that is, if the loss would not have happened, provided the guest had used the ordinary care which a prudent man might have been expected to take under the circumstances (s); or if the goods be stolen from a room in the inn of which the guest had the exclusive possession otherwise than as a mere guest, e.g., as a warehouse, or for the purposes of trade (t), the innkeeper is not liable. Where, however, a traveller went to an inn, and desired to have his luggage taken into the commercial room, to which he resorted, and 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 giren respecting it; there being no proof that the defendant gave notice to the plaintiff, that he would not be liable unless the goods were placed in the bedroom" (u). So, 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: the innkeeper was held bound to make good the loss (r).

If, however, an innkeeper receives goods as a general bailee, and not in the character of an innkeeper, he is liable only according

to the nature of the particular bailment (y). Limitation of And now, by the Innkeepers Act, 1863, 26 & 27 Vict. c. 41,

it liability

is enacted that no innkeeper shall be liable to make good to any keepers Act,

guest (z) of such innkeeper, any loss of or injury to goods or 1863, to 301.

property brought to his inn (not being a horse or other live animal, or any gear appertaining thereto, or any carriage), to a greater amount than 301., except (1) where such goods or property shall have been stolen, lost, or injured through the wilful

under Inn.

(9) Strau88 v. County Hotel Co. (1883), 12 Q. B. D. 27.

() See per Lord Ellenborough, C.J., Burgess v. Clements (1815), 4 M. & S. 306.

(s) Oppenheim v. White Lion Hotel Co. (1871), L. R., 6 C. P. 515; Cashill v. Wright (1856), 6 E. & B. 891; Armistead v. Wille (1851), 17 Q. B. 261 ; Sanders v. Spencer (1569), Dy. 266; and see Bac. Abr. Inns (C.), 4.

(t) Farnuorth v. l'ackwood (1816), 1 Stark. 249, 251, 11. ; Burgess v. Clements

(1815), 4 M. & S. 306.

(u) Richmond v. Smith (1828), 8 B. & C. 9; and see Armistead v. Wilde (1851), 17 Q. B. 261.

(x) Bennett v. Mellor (1793), 5 T. R. 273 ; 2 R. R. 593.

(y) Williams v. Gessey (1837), 5 Scott, 56.

(3) This includes a person having the occupation of a room only to washi and dress in, as long as his luggage remains there; Medauar v. Grand Hotel Co., [1891] 2 Q. B. 11, C. A.

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