Innkeepers' Liability Act (c) was passed was he compellable to receive every description of goods with a Guest, but only such as a person ordinarily travels with (d). But by the 2nd section of the 26 & 27 Vict. c. 41, it is enacted that, "if an Innkeeper shall refuse to receive for safe custody, as before mentioned, any goods or property of his Guest, or if any such Guest shall, through any default of such Innkeeper, be unable to deposit such goods or property as aforesaid, such Innkeeper shall not be entitled to the benefit of this Act in respect of such goods or property." However, it is to be presumed that this section does not apply to such goods as an Innkeeper was entitled to refuse before this Act came into operation, as, if made applicable to all goods, an Innkeeper who refused to convert his Inn into a Warehouse for the goods of his Guest would be disentitled to the benefit of the Act in respect of them. It is no defence to an action by a Guest for the loss of How ousted. his goods for the Innkeeper to allege that he was sick or of non sane memory at the time (e); nor that there was no positive negligence on his part (f); but the negligence of the Guest is a good defence, if it is gross negligence (g), or if it occasioned the loss "in such a way as that it would not have happened if the Guest had used the ordinary care that a prudent man may be reasonably expected to take under the circumstances" (h). In Oppenheim v. White Lion Hotel Co. (i), the plaintiff, who was a Guest at the Inn, went to bed, having a bag containing about 271. in his trouser's pocket. He left his trousers on the ground at the side of his bed farthest from the door. There was a key in the lock of the door, but he only shut the door and did not lock it. He had previously pulled the bag containing the money out of his pocket in the commercial room for the purpose of paying somebody some money. And the Court of Common Pleas held, that there was evidence of negligence on his part, which occasioned the loss in such a way that it would not have happened had he used the care that a prudent man might reasonably be expected to have taken under the circumstances. (c) 26 & 27 Vict. c. 41. 417. (e) Cross v. Andrews, Cro. Eliz. 622. (f) Morgan v. Ravey, 30 L. J., Ex. 131. (9) Armistead v. White, 20 L. J., Q. B. 524. (h) Per Erle, C. J. (Ex. Ch.), (2) L. R. 6 C. P. 515; 40 L. J., Where a Where another person's Horse is stolen. Principle upon which liability depends. Horse out at grass by the Guest's desire. If the Guest's Horse is stolen the Innkeeper is answerable in an action upon the custom of the realm (k), even if the owner has gone away for several days, and it is lost or stolen in his absence, or if it has been brought by a servant (1). And inasmuch as 26 & 27 Vict. c. 41, s. 1, specially exempts Horses from the operation of that Act, the Innkeeper's liability as respects amount is not restricted with regard to them. But if a person takes another's Horse, and rides him to an Inn where he is lost or stolen, the owner has no action against the Host, but has his remedy against the taker (m). The liability of an Innkeeper for loss continues only so long as he derives benefit from his visitor or his property, for if the Innkeeper could not gain a profit, he is not liable to suffer loss without a special undertaking (n), for so long only is a visitor a Guest. Upon this principle a person leaving a Horse at an Inn becomes a Guest, while a person leaving dead goods at an Inn does not become a Guest, for the Horse must be fed, by which the Innkeeper has gain (o). And therefore the Innkeeper is liable for the loss of the Horse, although its owner is not staying at the Inn. Thus, too, when a person came to an Inn, and desired to leave some goods there till the next week, which was refused, and then stayed to drink something, during which time his goods were stolen, the Innkeeper was held to be liable (p). But if a man who has been a Guest, gives up his room, and quits the Inn for a few days, intending to return, and asks for permission to leave his goods at the Inn, and the Innkeeper takes charge of them, the Innkeeper is clothed only with the ordinary duties and responsibilities of a bailee (g). An Innkeeper is only bound by the custom of the realm to answer for those things that are infra hospitium, and not for anything out of his Inn. For where a Horse is lost or stolen when out at grass by the Guest's desire, the Host is not chargeable, unless it was the consequence of his wilful negligence (r): for instance, an action lies against an Innkeeper who voluntarily leaves open the gates of his close, whereby the Horse strays out and so is lost or stolen (s). the Guest's But he is answerable if he has put the Horse out to grass Horse out at without the owner requiring him to do so (s). And where grass without an Innkeeper took in a Horse and gig on a Fair day, and desire. the Hostler, without the Guest's permission, placed the gig outside the Inn-yard, in the part of the street in which the carriages at the Inn were usually placed on Fair days, and the gig was stolen thence, the Court of King's Bench held the Innkeeper responsible. And Mr. Justice Taunton said, "It does not appear that the gig was put in this place at all at the request or instance of the plaintiff; the place is therefore a part of the Inn; for the defendant by his conduct treats it as such. If he would wish to protect himself, he should have told the plaintiff that he had no room in his yard, and that he would put the gig in the street, but could not be answerable for it; not having done so, he is bound by his common law liability" (t). It is said in Calye's case (u), that an Innkeeper's liability is confined to "bona et catalla," and that he is not answerable if the Guest himself is beaten, as that is not a damage to "bona et catalla." But it seems that this statement must be simply taken to mean that the Innkeeper is not bound to insure his Guest; for in a recent case it was held that it is the duty of an Innkeeper to take reasonable care of the persons of his Guests, so that they are not injured by reason of a want of such care on his part whilst they are in the Inn as his Guests (x). Where the Guest's Horse has been beaten, the Innkeeper was held liable; and it appeared that it had been injured by having been taken out of the Inn and immoderately ridden and whipped, though it did not appear by whom (y). Where a Guest's Horse is injured. against the Where a Guest's Horse is injured, there is always a Presumption presumption of negligence against the Innkeeper. It is of negligence questionable, indeed, if in any case this presumption can Innkeeper. be rebutted without proof of actual negligence on the part of the Guest. The case of Dawson v. Chamney (≈) has been (s) Bac. Abr. tit. Inns and Innkeepers; Calye's case, 8 Coke, 32 b; Moor, 1229; Pop. 127; Mosley v. Fosset, 1 Rol. Abr. 3; 4 Leon. 96; 2 Brownl. 255; Richmond v. Smith, S. B. & C. 11. (1) Jones v. Tyler, 1 A. & E. 522; S. C. 3 N. & M. 576. (u) Calye's case, 8 Rep. 32 a; S. C. 8 Co. 32. (r) Sandys v. Florence, 47 L. J., C. P. 598, per Lindley, J. (y) Stannion v. Davis, 1 Salk. 404; S. C. 6 Mod. 323. See also Bather v. Day, 32 L. J., Ex. 171; 2 H. & C. 14. (z) Dawson v. Chamney, 13 L. J., Q. B. 33; S. C. 5 Q. B. 165; S. C. Not rebutted by stables relied upon to show that this presumption may be rebutted by giving proof of such skilful management on the part of the Innkeeper, as to convince the Jury that the damage could not have been occasioned by the negligence imputed. But this view of the law was held to be untenable by Pollock, C. B., in the case of Morgan v. Ravey (a), who, in delivering the judgment of the Court of Exchequer, said, "We think the cases show there is default in the Innkeeper wherever there is a loss not arising from the plaintiff's negligence, the act of God, or the Queen's enemies" (b). And it must be borne in mind that, though there be a being out of private arrangement between the Innkeeper and the Keeper of the Inn Stables or Hostler, and the result of that arrangement be that as between him and the Innkeeper, the Innkeeper has lost all control over the Stables, yet as between his control. 7 Jur. 1037. See also Cashill v. (a) Morgan v. Ravey, 6 H. & N. (b) According to the report of the case of Dawson v. Chamney, in 13 L. J., Q. B. 33, and in 5 Q. B. 164, the Horse of the Guest was left at the defendant's Inn on a market day, and given in charge to the Ostler, who placed it in a stall where there was another Horse, which kicked it, and so inflicted an injury. On these facts it was held by the Court of Queen's Bench, that in such case there was a presumption of negligence on the part of the Innkeeper or his servants; but that this presumption might be rebutted by giving proof of such skilful management on his or their part as to convince the Jury that the damage could not have been occasioned by the negligence imputed. But a material difference will be found in the report of the facts of this case in 7 Jur. 1057, for it is there stated, that "there was no evidence of the manner in which the Horse received the injury for which the action was brought." It appears that the only report of this case which was seen by the Court, when giving judgment in the case of Morgan v. Ravey, was that of the Jurist, and that Pollock, C. B., founded the only possible reconcilement of Dawson v. Chamney with the law upon this point, which is the very point of discrepancy between the Jurist and the other Reports. He said, "The only case which points the other way is that of Dawson v. Chamney, and according to the report of that case in 7 Jur. 1057, there was no evidence of the manner in which the Horse received the injury for which the action was brought; and this may be the explanation of that case, for though the damage happening to the Horse from what occurred in the stable might be evidence of default or neglect, still it was not shown how the damage arose, and it was not even shown that it arose from what occurred in the stable. It might have arisen from something which had occurred long prior to the Horse being put into the custody of the Innkeeper. That would distinguish this case, and reconcile all the cases with the general current of authority." It matters not indeed, so far as the law is concerned, which report of the case of Dawson v. Chamney is authentic, for if that contained in the L. J. and Q. B. Reports is the correct one, it has been overruled by Morgan v. Ravey; and if that of the Jurist is to be taken, it does not establish the point that in case of loss to the Guest, the presumption of negligence on the part of the Innkeeper can be rebutted, otherwise thau by proof of actual negligence on the part of the Guest, the Innkeeper and his Guest no such private arrangement can be recognized, and the Innkeeper's liability towards him for injury done to the Horse remains unimpaired (c). For the security and protection of travellers, Inns are A Guest's allowed certain privileges, such as that the Horse and goods not goods of the Guest cannot be distrained, &c. (d). distrainable. If an Innkeeper takes his Guest to rooms that he has Even where provided for him, on account of not having sufficient room in his Inn, these rooms are privileged from distress (e). he is accommodated out of the Inn. For vided for the occasion. So also if a Guest's Horse is put into a Stable provided or uses a for a particular occasion, it cannot be distrained. Formerly, stable prohowever, a different view was taken in a similar case. where the tenant of a Stable had sub-let it to an Innkeeper during races, and the Horses of a Guest were put into it and afterwards distrained by the landlord, the Distress was held good, and Lord Mansfield, C. J., thought that the owner of the Horses had his remedy against the Innkeeper under the implied warranty for safe custody (ƒ). An Innkeeper has a general lien on all goods and chattels belonging to his Guest (g). He has no lien on goods sent to his Guest for a parti- Innkeeper's cular purpose, and known by him to be the property of lien. another person (), but his lien extends to goods brought to the Inn by a Guest, though they belong to a third party, provided they be such as persons ordinarily travel with (), as these he is compelled to receive. And in Threfall v. Borwick (k), it was held that his lien extends to all the goods which he has actually received with a Guest whether the property of the Guest or not, and is not limited to such things as he was bound to receive with the Guest. As an Innkeeper by law is bound to receive the Horse of Innkeeper has a traveller in case his stable is not full, he has therefore lien for its keep upon a Horse left with him, and received by him in his character as Innkeeper (1), whether it be kept in the stable or put out to grass. For the pasture (c) Bather v. Day, 32 L. J., Ex. 171; 8 L. T., N. S. 205. (d) 1 Rol. Abr. 668; Co. Litt. 47. (e) See per Pollock, C. B., Williams v. Holmes, 22 L. J., Ex. 284. (f) Crosier v. Tomkinson, 2 Ld. Ken. 439; S. C. Barnes' Notes, 472. (g) Mulliner v. Florence, L. R., 3 Q. B. D. 484; 47 L. J., Q. B. 700; 38 L. T., N. S. 167. a (h) Broadwood v. Granara, 10 Ex. 417. (i) Snead v. Watkins, 26 L. J., C. P. 57. (k) L. R, 10 Q. B. 210; 44 L. J., Q. B. 87; 32 L. T., N. S. 32; Ex. Ch. Affirming, L. R., 7 Q. B. 711; 41 L. J., Q. B. 266; 26 L. T., N. S. 794. (1) Smith v. Dearlove, 6 C. B. 135; S. C. 12 Jur. 377. a lien on a Horse for its keep. |