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CREDITORS NOT PARTIES TO PROCEEDINGS TO SET ASIDE CONVEYANCE AS FRAUDULENT cannot avail themselves of the adjudication: Huntington v. Jewett, 95 Am. Dec. 788.

AS TO WHEN VOLUNTARY CONVEYANCE WILL BE HELD FRAUDULENT, see Redfield v. Buck, 95 Am. Dec. 241; Stewart v. Rogers, 95 Id. 794.

ATTEMPTED FRAUDULENT CONVEYANCE OF ALL HIS PROPERTY BY DEBTOR is a waiver of right to have personal property levied on before real estate: Stancill v. Branch, 93 Am. Dec. 592.

BURROWS V. MICKLER.

[22 FLORIDA, 572.]

RIGHT OF APPEAL IS NOT WAIVED BY PAYMENT of the amount of the execution to the sheriff, to avoid a levy.

MOTION by defendant in error to dismiss the writ of error.

Doggett and Buckman, for the motion.

M. C. Jordan, contra.

By Court, RANEY, J. Mickler, the defendant in error, moves to dismiss the writ of error. He had a money judgment against Burrows, and the writ of fi. fa. was in the hands of the sheriff. The real grounds of the motion are, that the judgment and executions have been satisfied and voluntarily paid by Burrows, and that this was done before any supersedeas issued or was served. The motion is supported by the following return or certificate made by the sheriff on the execution: "I hereby certify that I received the within execution on the fifteenth day of August, 1885; executed the within writ in the following manner: On the twenty-eighth day of January, 1886, the defendant, to avoid levy hereunder, paid to the sheriff $232.04, being the amount of the within judgment, costs, and interest to the fifteenth day of February, 1886; said amount so paid was paid under the following understanding and with the following agreement: That in the event a supersedeas should issue on or before the fifteenth day of February, 1886, in the within entitled cause, the amount so paid should be returned to said defendant, and in the event no supersedeas should issue on or before the fifteenth day of February, 1886, said amount to be applied to the full satisfaction of this execution. No supersedeas having issued on or before February 15, 1886, so much of said amount as satisfied said judgment. as to the judgment, interest, and costs was paid to Doggett

and Buckman, attorneys for plaintiff herein; that afterwards defendant's attorney gave notice to the sheriff of the issuance of a supersedeas, since which time the sheriff has done nothing in the premises."

It is apparent that the purpose of Burrows, as shown by the above agreement between him and the sheriff, was, that the money put into the sheriff's hands by him should not operate as a payment of the execution until the sixteenth day of February, 1886, nor at all, if the supersedeas should be obtained on or before the fifteenth day of such month. There is no agreement either in form or effect not to take a writ of error. The writ lies without a supersedeas.

The case before us is in effect that the defendant in judgment and execution has paid the amount necessary to satisfy them. Counsel for the motion has shown no authority to support the idea that such payment by a defendant in execution amounts to a waiver of the right to have the judgment reviewed by appeal or writ of error.

Authorities cited by counsel opposing the motion, as well as all other decisions which we have found in our investigation, are to the effect that such payment does not waive this right: See County Commissioners v. Johnson & Co., 21 Fla. 577; Richeson v. Ryan, 14 Ill. 74; 56 Am. Dec. 493; Erwin v. Lowry, 7 How. 172; O'Hara v. McConnell, 93 U. S. 150; Gregg v. Forsyth, 2 Wall. 56; Close v. Stuart, 4 Wend. 95; Mayor etc. v. Riker, 38 N. J. L. 225; 20 Am. Rep. 386; Scott v. Conover, 10 N. J. L. 61; Randolph v. Bayles, 2 Id. 49; Anonymous, 3 Id. 469. In County Commissioners v. Johnston & Co., 21 Fla. 577, we held that the performance by respondents of the command of a peremptory writ of mandamus was not a bar to an appeal from the judgment awarding the writ. In Putnam v. Churchill, 4 Mass. 516, it was held even that an agreement not to appeal from a judgment did not preclude the taking of a writ of error. In Richeson v. Ryan, supra, it is said Richeson "was at liberty to pay off the judgment at once, and thereby prevent the accumulation of interests and costs. By so doing, he did not waive his right to remove the record into this court for the purpose of having the validity of the proceedings tested and determined."

The motion is denied.

PARTY PAYING JUDGMENT AGAINST HIMSELF BEFORE EXECUTION ISSUED does not thereby waive his right of testing its validity in the appellate court: Richeson v. Ryan, 56 Am. Dec. 493.

O'BRIEN V. VAILL.

[22 FLORIDA, 627.J

LAW IMPOSES ON INNKEEPER EXTRAORDINARY LIABILITY for the protection of the baggage of his guest. He can avoid it only on the grounds of the loss having been occasioned by the act of God, the public enemy, the misconduct of the guest, or of the friend he brings with him. INNKEEPER'S LIABILITY AS SUCH CEASES when his guest pays his bill and departs, announcing that he would be gone a few days, but would leave his baggage to be cared for till his return. The innkeeper's subsequent duty is that of a gratuitous bailee of such baggage, liable only for gross negligence.

ACTION against innkeeper for damages for loss of baggage. Verdict for the plaintiff. Defendant appealed.

C. P. and J. C. Cooper, for the appellant.

Fleming and Daniel, for the appellee.

By Court, McWHORTER, C. J. On the 26th of March, A. D. 1885, plaintiff, O'Brien, went to the hotel of the defendant, E. E. Vaill, in the city of St. Augustine, and stopped there as a guest. The next day plaintiff paid his bill to the clerk in the office of the hotel, and told him he would be gone for a few days, but would leave his baggage, which consisted of two trunks and a valise, until his return, and which he requested the clerk to take care of for him. Plaintiff left his baggage in his room, locked the door, and gave the key to the clerk. Plaintiff told the clerk that on his return he would board with him. On April 2d plaintiff returned, and again became a guest of the hotel. The plaintiff's baggage had been removed by the proprietor to the main hall of the hotel. On inquiring for his baggage, it was found that one of the trunks had been stolen.

It was in evidence that the front door opened into the office, and there was no entrance into the hall besides the entrance through the office; that when the house was not closed there. was always some person in charge of the office, and when the hotel doors were closed there was always a watchman on duty. A former servant of the hotel was arrested for the theft, and confessing the crime, told the officer where they could find the trunk. Two hasps had been broken, and the most of the contents carried away. Vaill, the proprietor, refusing to pay O'Brien for his damage and loss, the latter brought suit.

The questions presented upon these facts are,-1. Was Vaill, O'Brien having paid his bill and departed from the house, but leaving his baggage, saying he would return, liable to O'Brien under the law regulating the liability of an innkeeper to his guest for the loss of such baggage. Attorney for appellant has called to our attention the case of Adams v. Clem, 41 Ga. 65; 5 Am. Rep. 524. In this case, Mrs. Clem was the guest of the innkeeper, Adams; her trunk was carried to her room, and was marked with her name; she paid her bill, saying that a gentleman, whom she pointed out, would call in ten minutes for it, and bring it to her in the country, to which Adams assented. She left the inn on Monday, and no one called for the trunk until Friday, when it was found to be lost. The court held the innkeeper responsible.

The appellant also cites the case of McDonald v. Edgerton, 5 Barb. 560. This decision is partly based on the case of Grinnell v. Cook, 3 Hill, 485; 38 Am. Dec. 663. We think the court misconstrued Justice Bronson in the case of Grinnell v. Cook, supra. In that case, Judge Bronson drew a well-founded distinction in respect of the innkeeper's liability for property left by the guest, as to whether the innkeeper was to receive compensation for keeping the property during the absence of the guest. The guest had left a horse which required feed and attention, for which the innkeeper had a right to charge á reasonable compensation. In the case of McDonald v. Edgerton, supra, the plaintiff left behind his coat, and there was no compensation agreed on or expected for keeping it. Leaving property for which a compensation for keeping was to be paid continued the relation of innkeeper and guest so far as that property was concerned.

We think the current of authority and the weight of reason is opposed to the conclusion reached by the supreme court of Georgia, and the supreme court of New York in 5 Barbour, supra.

The law imposes on an innkeeper an extraordinary liability for the protection of the baggage of his guest. He can avoid it only on the grounds of the loss being occasioned by the act of God, the public enemy, the misconduct of the guest, or the friend he brings with him. We can think of no other reason for the imposition of this liability upon the innkeeper than the profit he receives from entertaining his guest. When the traveler ceases to be his guest, and the innkeeper ceases to derive a profit for his entertainment, the relation of innkeeper and

guest have ceased as such, and, as a consequence, their relative liabilities.

O'Brien, when he paid his bill and left the hotel, put an end to the relation of guest to the hotel-keeper: See Miller v. Peeples, 60 Miss. 819; 45 Am. Rep. 423; Grinnell v. Cook, 3 Hill, 485; 38 Am. Dec. 663.

The expectation to become a guest again at some other time did not continue the relation of innkeeper and guest.

The next question is, What was the relation of the parties after the cessation of the relation of innkeeper and guest, as shown by the evidence? We think it was that of bailor and bailee, and that the defendant was a gratuitous bailee. The statement of the appellant that he expected to return to and board at the hotel could not be considered as a consideration for taking care of the baggage. A gratuitous bailee is liable. only for gross negligence. There is nothing proved in the case that will justify us in the conclusion that defendant was guilty of such negligence in opposition to the finding of the referee.

The judgment is affirmed.

AFTER GUEST HAS GIVEN UP HIS ROOM AT INN, and closed his connection therewith, the landlord is liable only as a common bailee for the guest's baggage left behind at the inn: McDaniels v. Robinson, 62 Am. Dec. 574, and 67 Id. 720; Miller v. Peeples, 45 Am. Rep. 423, and note.

INNKEEPER IS BOUND TO KEEP Safely and WELL PROPERTY OF GUESTS, and in case of loss or injury, can absolve himself from liability only by show. ing that the loss or injury was without his fault: Johnson v. Richardson, 63 Am. Dec. 369; Dunbier v. Day, 41 Am. Rep. 772, and note.

INNKEEPERS ARE LIABLE, WITHOUT REGARD TO ACTUAL FAULT OR NEGLECT, for loss of baggage of guest, custody of baggage being assumed as part of service: Pettigrew v. Barnum, 69 Am. Rep. 212.

INNKEEPER, DEFINITION OF: Howth v. Franklin, 73 Am. Rep. 218.

INNKEEPER MAY EXCULPATE HIMSELF by showing that loss did not happen by any neglect of his: Laird v. Eichold, 71 Am. Dec. 323. Relation of innkeeper and guest, when exists: Hancock v. Rand, 46 Am. Rep. 112, and note. Innkeeper is not answerable where property is destroyed without his negli. gence by accidental fire: Cutler v. Bonney, 18 Id. 127, and note 130-136.

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