from trunks that have been broken into, the innkeeper or carrier is liable. (Ersk. iii. 1. 28; Browster, June 5, 1707, Dict. 9240; M'Pherson, May 26, 1841, 3 D. 930.)

1438. There is no liability for articles of unusual value or fragility, unless an increased charge has been paid expressly as insurance in consequence of the nature of the subject (11 Geo. IV. and 1 Will. iv. c. 68; 17 and 18 Vict. c. 31); and the value of such articles must be proved by ordinary legal evidence. By the Railway and Canal Traffic Act of 1854 it is provided that the company shall be liable for neglect or default in the carriage of goods, animals, etc., notwithstanding any notice or condition or declaration made by the company for the purpose of limiting their liability; but that the company shall not be liable beyond a limited amount, unless the value be declared and extra payment made. The proof of value is laid on the person claiming compensation.

1439. The innkeeper will be relieved from responsibility if the guest undertakes the exclusive charge of his goods; but it will not be presumed that he has done so though he may have adopted some peculiar arrangements for their safety. (Stair, i. 13. 3; 1 Bell's Com. 469; Bell's Prin. 236. See Gordon, Jan. 19, 1700, M. 9237; Hay, June 24, 1704, M. 9238; Farnworth v. Packwood, 1 Starkie, 249; M'Pherson, sup.)

1440. By the Act 26 and 27 Vict. c. 42, important alterations are made on the laws relating to the liabilities of innkeepers. It is provided (sec. 1) that "no innkeeper shall, after the passing of this Act, be liable to make good to any guest of such innkeeper any loss of or injury to goods or 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 a sum of £30, except in the following cases :

"(1.) Where such goods or property shall have been stolen, lost, or injured through the wilful act, default, or neglect of such innkeeper or any servant in his employ.

"(2.) Where such goods or property shall have been deposited expressly for safe custody with such innkeeper."

1441. The Act also provides that the innkeeper may insist on the property being properly secured in a sealed box; and the exemptions shall not be available if the innkeeper should refuse to receive goods for safe custody, and if he fail to exhibit at least one copy of the first section of the Act in the principal entrance to his inn.

1442. An innkeeper has a right to detain the horse or wearing apparel of a guest who refuses to pay his bill, even though the ground on which payment is refused is that the charges are excessive. (2 Bell's Com. 104; Bell's Prin. 1428; Johnson v. Hill, 3 Starkie, 172; Nayler v. Mangles, 1 Esp. 109; York v. Greenhaugh, 2 Lord Raymond, 866.)

1443. An innkeeper, besides his ordinary lien at common law, has now the right, in payment of his bill, "absolutely to sell and dispose by public auction of any goods, chattels, carriages, horses, wares, or merchandise," left in any part of his premises after they have remained in his custody for six weeks, and after having advertised the intended sale, with a short description of the goods, one month before in one London and one local paper. But the debt in satisfaction of which such sale is made must be no other or greater debt than the goods could have been retained for under the ordinary lien; and the surplus, after satisfying the debt with expenses of sale, must be repaid on demand to the owner of the goods. (41 and 42 Vict. c. 38.)

1444. A railway company was found liable for luggage which, though not addressed, was delivered to a porter of the company by a passenger, who informed him of its destination, and who himself took a ticket for the same place; and this, although the passenger did not inquire for his luggage on a change of carriages, which took place in the course of the journey. In this case the value of the effects was ascertained by the oath of the passenger. It was observed on the bench, that the company

might have refused to take the luggage without an address; but having taken it, they were answerable for its safe delivery. (Campbell v. Caledonian Ry., May 27, 1852.)

1445. The rule which applies to carriers has been held to include carters and porters, who offer themselves for hire to carry goods from one part of a city to another. (Bell's Com. 467; Bell's Prin. 236; Ewing, July 1687, M. 9235; Manners, Dec. 2, 1769, M. 9245; 2 Kent, 598.)

1446. Hackney coachmen, however, have been said not to fall under it, as not being employed in the carriage of goods, nor in such journeys as to render luggage the necessary accompaniment of a passenger. From the extent to which such persons are now employed in the transport of luggage, the justice and expediency of this view seem extremely doubtful. (1 Bell's Com. 468; Bell's Prin. 236; Upshore v. Aidee, Com. Rep. 25; 1 Selwyn, N. P. 323; Jeremy's Law of Carriers, 13.)

1447. Wharfingers and warehousemen are exempted from the rule, and are liable only under the contract, or in accordance with mercantile usage. (1 Bell's Com. 467; Bell's Prin. 236; Ross v. Johnston, 5 Bru. 2825; Sideways v. Todd, 2 Starkie, 400; Garside v. Trent Nav. Co., 4 Term. Rep. 581; Webb and Others, 8 Taunt. 443.) In England the principles of the edict have been commonly referred to the custom of the realm, and are more or less embodied in the Carriers' Acts.

1448. The question as to whether lodging-house keepers are included is still undecided in Scotland. In England the negative view has been adopted, on the ground that they do not profess to entertain and lodge all travellers; and the same has been held with reference to coffee-house keepers not professing to lodge guests, and owners of public-houses merely for the sale of beer, etc. (See Cayle's case, in Smith's Leading Cases; Roscoe's Digest of the Law of Evidence at Nisi Prius, 9th edition, p. 415.)

1449. The Mercantile Law Amendment Act of 1856 (19 and

20 Vict. c. 60) provides that all carriers for hire of goods within Scotland, shall be liable to make good to the owner of such goods all losses arising from "accidental fire," while such goods were in the custody or possession of such carriers. (Sec. 17.) Though the words of the statute are general, it is probable that here, as in England, where the same rule prevails, an exception would be made in the case of fire occasioned by lightning, which is the act of God. (Chitty and Temple's Law of Carriers, p. 41.)

1450. Carriers, innkeepers, and others thus responsible are bound to restore the thing lost in the same state in which it was received, and will be liable to make good any injury to the article. To this the only exception is inevitable accident. Neither theft nor robbery are inevitable accidents, nor fraud or negligence of servants. (Bell's Prin. 237 et seq.)

1451. [When goods are delivered by a carrier at the proper time and place, the consignee should at once examine them and intimate any objection he may have to their condition. If he objects only after an interval, the presumption is that they were delivered in good order, and the burden of proving the reverse will lie on him. (Stewart, 1878, 5 R. 426.)]

CHAPTER VI.

OF PLEDGE AND LIEN.

1452. Pledge is a contract by which one man advances a sum of money to another on the faith of a special moveable subject, of which the former obtains the temporary possession, but which he binds himself to redeliver on repayment of the money. It is further of the essence of this contract, that if the money be not repaid within a reasonable period, which is usually fixed

Y

by stipulation, the holder of the subject, or pledge, shall be entitled to bring it to sale. (Stair, i. 13. 11; Ersk. iii. 1. 33; 1 Bell's Com. 258, 2 Bell's Com. 20; Bell's Prin. 203 and 1363.) The sale can take place only in virtue of a warrant from the Judge Ordinary.

1453. Lien differs from pledge in this, that in lien the property of the debtor is already in the hands of the creditor, who retains it in security for his debt. (Stair, i. 18. 7; Ersk. iii. 4. 20; 2 Bell's Com. 91; Bell's Prin. 1410.) The principal objects over which the right of lien rests are: A ship for repairs; goods conveyed by a carrier or shipowner for dues or freight; luggage, horses, or carriages of a traveller, for the price of entertainment at an inn; and cattle pastured in a field, for the value of the grass. Law agents have also a lien over the title-deed of their clients for payment of their accounts, and bankers over bills of their customers not discounted. (Mein v. Boyle and Co., January 17, 1828.)

1454. As regards lien for remuneration for labour, an important distinction is to be noted between the case in which the contract of service has reference to a particular piece of work (locatio operis), and that in which it has reference to work in general (locatio operarum). In the former case, as when one hires a tradesman to perform a certain operation on an object which is delivered to him, the tradesman is entitled to retain the object till he be paid for his work. A watchmaker may retain a watch given him to clean till he be paid for cleaning it, because it came lawfully into his possession, and lawful possession is the foundation of the right of retention. In the latter case, of which domestic service may be taken as the most prominent example, the servant has no right to retain any portion of his master's property in security of his wages, the property never having been in his lawful possession at all. (Fraser, M. and S. 152; Burns v. Bruce, Hume, p. 29.)

1455. The nature of hypothec has been already illustrated.