labour in the improvement of the horse, he will have a lien for his expenses. (a) A doubt was, however, expressed by Alderson, B., in the case of Scarfe v. Morgan, as to whether a trainer of horses would not be considered in the situation of a livery stable keeper, if by the contract he was to allow the owner to run the horse. extinguishes A tender of the money, for which the innkeeper claims the Tender of the lien, at once extinguishes the lien, (b) provided it is a valid whole price tender. But where a guest put down money on the table, the lien. and offered it, if the innkeeper would "take it in full of the bill," it was held not to be a valid tender. (c) The fact of the innkeeper having claimed a lien for the whole time, when in truth he was entitled to a part of it only, is not such an excess of claim as to dispense with a tender of that which was really due, (d) although a "claim of a lien of a larger amount, or on a different account than that for which the party is entitled to it, may, in some cases, amount to a dispensation with a tender. (e) If the innkeeper claims a right to keep the goods for two separate charges, and he has only a right to detain for one of such charges, there must still be a tender of the amount upon which the lien exists, (ƒ) for (as was remarked by Alderson, B., in Scarfe v. Morgan) it is "a monstrous position, that a party who claims a lien in respect of two sums, is supposed to have waived it in respect of one of them. The more natural conclusion is that he intended to insist on both. It was the duty of the plaintiff to have tendered either one sum or the other. If he said, 'I tender this specific sum,' it might have caused the defendant to reflect whether he had a right to detain for any other claim." (g) should state his claim of The innkeeper ought to state, at the time the goods are Innkeeper demanded, the nature of his claim of lien, but if he refuses to give up the goods, upon grounds distinct from that of lien, lien when this is deemed to be a waiver of the lien. So, where a ware-manded. (a) Jacobs v. Latour, 2 M. & P. 20, 5 Bing. 130; Jackson v. Cum mins, 5 M. & W. 342. (b) Ratcliff v. Davies, Cro. Jac. 244. (c) Gordon v. Cox, 7 C. & P. 172. (d) Allen v. Smith, 12 C. B. 644. (e) Per Willes, J., in Allen v. Smith, supra. (f) Scarfe v. Morgan. 4 M. & W. 270; Kerford v. Mondell, 28 L. J. Ex. 303. (g) See also Green v. Shewell, cited by Parke, B., in Scarfe v. Morgan, 4 M. & W. 277. goods are de Innkeeper's distrained the owner of the goods. houseman had refused to deliver up some brandy which he had had stored, alleging that it was his own property, it was held that the fact of warehouse rent which was due not being tendered, was no answer to an action of trover, (a) “for it would be absurd to offer the expenses of keeping the goods to one who insisted on retaining them as his own property." (b) But although the assigning of another reason for the detention than that of lien is evidence of a waiver of the lien, the mere fact of omitting to mention it when the goods are demanded, will not amount to a waiver, unless coupled with a claim inconsistent with a right of lien. (c) The lien of the innkeeper for board and lodging is not limited to a reasonable, or any, amount, but extends to whatever amount the guest thinks proper to order, provided he is possessed of his reason, and is not an infant. So, where an innkeeper was asked not to allow his guest more than a certain quantity of brandy and water, and the guest's mother sent to him to that effect, but the innkeeper, notwithstanding this, supplied him with a considerable quantity, it was held that the landlord was not bound to investigate the nature of the articles which were ordered by the guest before he supplied them, for, as was said by the learned judge in that case, the landlord of an inn may supply whatever things the guest orders, and the guest is bound to pay for them, provided he is possessed of his reason, and is not an infant." (d) 66 The goods which are thus held by the innkeeper cannot be lien cannot be distrained for a debt owing by the innkeeper, for, by the except for a general law, a sheriff can seize nothing in execution but what debt owing by he can sell. (e) Now, a lien is a personal right, a mere right of detention, and cannot be sold. It is "an interest which the bailee cannot hand over to anyone, unless, perhaps, to a servant, who impliedly holds on behalf of the bailee, without being guilty of a conversion. If, therefore, the goods cannot be sold, neither can they be seized, for nothing is by law seizable that may not afterwards be sold." (ƒ) (a) Boardman v. Sill, 1 Camp. 410n; Weeks v. Goode, 6 C. B., N. S. 367; Thompson v. Trail, 6 B. &. C. 36; 9 D. & K. 31. (b) White v. Ganier, 9 Moore 45. (c) Owen v. Knight, 4 Bing. N. C. 54; 5 Scott, 307; and see Jones v. Cliff, 5 C. & P. 560. (d) Per Ld. Abinger in Proctor v. Nicholson, 7 C. & P. 67. (e) Legg v. Evans, 6 M. & W. 42; 4 Jurist, 197; Nathan v. Giles, 5 Taunt. 557. (f) Legg v. Evans, supra, per Parke, B.; Cross on Lien, page 49. It would be otherwise if the goods were held as a pledge by any agreement, but in the case of a lien, the goods may be seized for a debt owing by the owner of the goods, provided the amount for which they are a security has been tendered to the innkeeper. CHAPTER X. Actions Against Innkeepers. ALTERATIONS MADE BY THE JUDICATURE ACTS page 128 ACTIONS FOR LOSS OR DAMAGE OF THE GUEST'S GOODS 128 .128-9 DEFENCE OF LIMITATION OF LIABILITY UNDER THE STATUTE 130 OTHER DEFENCES 130 MATEER V. BROWN .131-4 INDICTMENT AND ACTION FOR REFUSING TO RECEIVE GUEST... 135 135 GUEST'S GOODS, IF STOLEN, MAY BE LAID THE PROPERTY OF 136 MEASURE OF DAMAGE WHEN GOODS LOST 137 ACTION MAY BE BROUGHT AGAINST EXECUTORS OF INNKEEPER 137 137 137 PRECEDENTS IN PLEADING UNDER THE JUDICATURE ACTS...138-40 Actions for the loss of or ALTHOUGH both the form of action and the method of damage to the pleading are considerably altered by the provisions of the guest's goods. Judicature Acts it is necessary to remember that demurrers are still allowed, (a) and that the pleadings, although different in form, must state what amounts to a complete cause of action, ground of defence, set off, counter claim, or reply. It is, therefore, of the greatest importance to remember what are the essential points to constitute a perfect claim in actions such as we shall now consider. In an action against an innkeeper for the loss of or damage to a guests' goods, the statement of claim should state facts which show that the defendant was the keeper of a common inn for the reception of travellers, but it is not necessary to set (a) Order XXVIII., rule 1. out that, by the custom of the realm, such a person is liable for the loss of his guest's goods. (a) An allegation that a man was possessed of an inn, as of his own proper inn, implies that he kept it. (b) That the plaintiff, his son or servant, being a traveller, came to the defendant's inn, and was received and lodged by the defendant as a "guest" at his inn. The owner of goods may maintain an action for loss of or damage to them, even though taken to an inn by his son or servant, in the character of a guest, and lost by the negligence of the innkeeper or his servants; and it has been held that a person who hires goods is to be considered, for all purposes of actions, as the servant of the owner. (c) So where a father gave his son money to pay his expenses to college, and the son, staying at an inn on the way, was robbed; it was held, that the action could be brought in the father's name. (d) And where the agent of a corporation, who was staying at an inn, whilst engaged in the business of the corporation, and was robbed of a sum of money which he had received to expend on their behalf; it was held that the innkeeper was responsible to the corporation, and the action could be brought in their name. (e) So also a "commercial traveller" is a sufficient servant to enable the employer to bring the action, (f) That the plaintiff, his son or servant brought to, and placed within defendant's inn, certain goods. The goods should be described as clearly as possible, It is not necessary that they should have been placed in the actual custody of the innkeeper himself, as long as they have been placed within the inn,(g) for a guest need not even tell the innkeeper that he has any goods, in order to render him liable; it is, therefore, unnecessary to introduce such allegation in the statement of claim. That whilst the goods were in the defendant's care they were lost or stolen, or as the case may be. It is not necessary to allege negligence on the part of the innkeeper, for the mere loss of the goods, whilst in the defendant's inn, will be pre (a) Dale v. Hall, 1 Wilson 281, per Denison, J.; and see new rules (Order XIX., rule 28). (b) York v. Greenhough, 2 Ld. Raymond, 866. (c) Mason v. Thompson, 9 Pick. 280. (d) Epps v. Hind, 27 Miss. 657. (e) Berkshire, &c., v. Proctor, 7 Cush. 417. (f) Candy and another v. Spencer, 3 F. & F. 306. (g) Ante, page 109. K |