Edict Rules of re to the person who should be found to have the best right to it. By an edict of the Roman prætor, the policy of which has been generally adopted in modern Europe, as well as by the North American States, shipmasters, innkeepers, and stablers, are responsible for the luggage and effects of travellers intrusted to their care, or brought into the ship, inn, or stable. The edict is in these words :-"Nautæ, caupones, stabularii, quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo."1 Under nautæ are comprehended carriers by water; but the principle has been extended in this country to land-carriers, whose responsibility is in some respects more stringent than it appears to have been by the Roman law. Caupones are the keepers of inns, where travellers are accommodated with food and lodging. These inns abounded at Rome, and along all the great roads of Italy, as appears from Horace's description of his journey from Rome to Brundusium (Sat. i. 5); and the persons who kept such places of public entertainment were held in low estimation among the Romans. "It is necessary," says Ulpian, in commenting on the edict, "to confide largely in the honesty of such men; and if they were not held very strictly to their duty, they might yield to the temptation to commit a breach of trust, and even enter into secret leagues with thieves." 2 On grounds of public policy, therefore, innkeepers were sponsibility under edict. held responsible for the loss or damage of goods deposited with them by their guests, whether arising from the acts of the servants of the inn or of strangers. When the goods are stolen, either by one connected with the inn, or by some other person who obtains access to the premises, the loss must be made good to the owner; for theft is no excuse, the edict being intended to protect travellers both against negligence and dishonesty. But the innkeeper is not bound to repair loss or damage occasioned by inevitable accident or superior force, such as lightning, tempest, popular tumult, piracy, robbery, or the like. An innkeeper was held not 1 D. 4. 9. 1. pr. and § 1. 2 Ibid. liable for the value of horses placed in his stables, which were destroyed by an accidental fire; this, in the absence of any proof of negligence, being regarded as a damnum fatale.1 The same principle seems to have been applied to a loss occasioned by robbers or housebreakers, who were convicted and transported.2 It was never doubted in Scotland, any more than in England, that the responsibility of innkeepers. under the edict extends to theft.3 Professor Bell thinks they are also liable for robbery; but this seems questionable, as the Roman law makes a clear distinction between the case where goods are stolen clandestinely and where they are abstracted by overwhelming force.5 According to the French. law, innkeepers are not responsible where the goods belonging to their guests are feloniously abstracted, either by an armed force, or any other superior force; but they are answerable, as in this country, for theft or damage, whether committed by the servants of the inn or by strangers. By the Act 26 & 27 Vict. c. 41, an innkeeper is not liable for loss or injury to goods or property brought by any guest to his inn beyond £30, except in the following cases: -1. Where the property consists of a horse or other live animal, or gear belonging thereto, or a carriage. 2. Where the property has been stolen, lost, or injured through the wilful act or neglect of the innkeeper or his servant. 3. Where the property has been expressly deposited for safe custody with such innkeeper. To entitle an innkeeper to the benefit of the Act, two things are required: 1st, He must not refuse to receive goods for safe custody; 2d, He must exhibit in the hall or entrance to his inn a printed copy of the first section of the Act. A lodging-house keeper makes a contract with every man that comes, and stands in a different situation from an innkeeper, who is bound, without making any special contract, to provide lodging and entertainment at a reasonable price. 41 Bell's Com., p. 469. 1 Macdonell, 15th Dec. 1809, F. C. 2 Watling, 10th June 1825. 3 Richmond v. Smith, 8 Barn. & Cres., 9. Kent v. Shuckard, 2 B. & Ad., 803. 1 Bell's Com., 470. 5 D. 4. 9. 3. 1. Kent's Com., 10th ed., vol. ii. p. 819. 6 Code Civil, art. 1953. to all comers, so far as his means of accommodation extend. The edict, therefore, has been held not to extend to lodginghouse keepers.1 Nature of pledge. Pactum antichresis. Sect. 3.-Pledge. Pledge is the delivery of a thing to a creditor as a security for money due, on condition of his restoring it to the owner after payment of the debt, and with a power of sale if the debt should not be paid. Hypothec is a security established by law to the creditor upon a subject which continues in the debtor's possession.2 Immovables, such as lands and houses, as well as corporeal movables and other things, might be the subject of pledge by the Roman law. As the contract is for the benefit of both parties, the creditor is bound to bestow ordinary care and diligence in the preservation of the subject. He is responsible for culpa levis. As the pledge continues the debtor's property, if it be lost from unavoidable accident, or perish from intrinsic defect, the creditor is not answerable, and may, notwithstanding, enforce payment of his debt. But in such a case it is not sufficient for the creditor to allege that the pledge is lost; he must show how the loss occurred, and that it was not in his power to prevent it. The creditor, though in possession of the pledge, could not use it, or take the profits of it, without a contract to that effect. He was bound to account for these profits, but he was entitled to an allowance for all necessary expenses laid out on the subject. By the pactum antichresis the creditor was allowed to take the profits in lieu of the interest on his debt. It might be made a condition of the contract, by the lex comabolished. missoria, that the thing pledged should become the absolute property of the creditor if the debt was not paid at the time agreed on. But as this condition was found to be a source of great oppression and injustice, it was prohibited by a law of Constantine, A.D. 326.3 Lex commissoria 11 Bell's Com., 469. Thompson v. Lacy, 1819, 3 Barn. & Ald., 283. 2 D. 20. 1. C. 8. 14. 3 C. 7. 35. A thing might be pledged to several persons in succession, whose claims were to be satisfied according to their priority in time. To this rule there were some exceptions; for instance, where a subsequent creditor advanced money, which was applied to the preservation of the thing pledged, such as a ship, he was allowed a preference.1 A similar principle is recognised in our law as to money lent on bottomry bonds. The pledge covers the debt and interest, and all necessary Pledge covers debt, expenses. When these are paid, the debtor is entitled to interest, have the pledge restored to him. By the French Code the and costs. holder of a pledge has a right of retention for other debts due to him from the pledger, though not specifically charged on the subject pledged.2 In England the creditor is not allowed to retain the pledge for any other debt than that for which it was given; and although it has been said that a different rule prevails in Scotland, this seems questionable under recent decisions.3 sale. After the term of payment is passed the creditor has a Power of right to sell the pledge, and retain his debt out of the produce of the sale. If there be a deficiency, he has a personal action to recover the balance from the debtor, and if there be a surplus the debtor is entitled to it. By the Roman law the power of sale was to be exercised pursuant to the terms of the contract, and this might be done without judicial authority. If there was no special agreement to regulate the matter, it was declared, by a constitution of Justinian, that the sale should not proceed till two years had elapsed from the date of the notice given to the debtor, or of a judicial sentence obtained against him. In England, after default by the debtor in complying with his engagement, the creditor may sell without judicial process, upon giving reasonable 1 D. 20. 4. 5. * Code Civil, art. 2082. 3 National Bank v. Forbes, 3d Dec. 1858, 21 Sess. Ca., 79-Observed: If the title of possession be unlimited as a title of property, the party is entitled to retain till every debt due to him by the party demand ing delivery of the subject is paid. C. 8. 34. 3. Justinian. notice to the debtor to redeem.1 A judicial sentence is required to warrant the sale in Scotland, and the same rule is followed in France.2 A pledge is determined by the destruction of the subject, by the payment of the debt, by the creditor releasing the debtor, and in various other ways. In connection with this subject, it may be observed that the business of pawnbroking, one species of pledge, is in this country placed under special regulations by the Acts 39 & 40 Geo. III. c. 99, and 9 & 10 Vict. c. 98. Tacit hypothecs were recognised by the Roman law to a much greater extent than in modern times. Among other instances the following may be mentioned:-1. The public treasury had a preference by tacit hypothec over all the property of a person indebted to the Fisc. 2. If money was lent for the repair of a house, the building was hypothecated to the creditor for the debt. 3. The proprietor of a rural subject had a tacit hypothec for his rent over the fruits belonging to the tenant: the landlord of a house or shop or warehouse had a similar hypothec over the movables brought into them by the tenant.3 Their diffe Sect. 4.-Innominate Contracts. Before leaving the subject of real contracts, we require to rent kinds. notice those called by modern jurists innominate, because they have no special names. They are classed by Paulus under four general heads: Do ut des; do ut facias; facio ut des; facio ut facias. It was essential that something should be actually given or performed by one of the parties in order to constitute an obligation against the other. Exchange. One of the most important of these innominate contracts is exchange (permutatio), which is perfected when one of the 1 Story's Com. on the Law of Bailments, p. 206. 22 Bell's Com., 22. Code Civil, art. 2078. 3 C. 20. 2. § 3, 4, 7. |