reasonable for infringing the provisions of that Act, or of the principal Act (a) relating to closing, such person fails to prove that the person to whom the liquor was sold is a bona fide traveller, But bona fide but the justices are satisfied that the defendant truly believed belief and that the purchaser was a bonâ fide traveller, and further that precautions the defendant took all reasonable precautions to ascertain will excuse whether or not the purchaser was such traveller, the justices shall dismiss the case as against the defendant. him. soldiers and Before concluding the present chapter it will be well to call Billeting attention to the liability of the proprietors of inns, hotels, marines. livery stables, alehouses and winehouses, to have soldiers billeted upon them. The rules upon the subject are exceedingly stringent, especially when we look at the small price which is to be paid for the accommodation, and the fact that if the innkeeper has not sufficient accommodation on his own premises he must find it elsewhere. The sections in the Annual Mutiny Acts referring to billets are given in full in the appendix. Private persons, proprietors of canteens, Persons extaverners, being vintners of the City of London (even though provisions as they may have taken out victuallers' licences), distillers, shop- to billets. keepers whose principal dealing is not in strong drink, and recognised foreign consuls, are exempt from all the provisions relating to billets. empt from (a) 1872. CHAPTER VII. The Innkeeper's Liability as a Bailee. .page 86 888888 87 INNKEEPER A SPECIAL BAILEE BY CUSTOM 88 INNKEEPER MUST RECEIVE ALL GOODS WITHOUT DISTINCTION .93-94 THRELFALL V. BORWICK CONSIDERED.. .94-97 INN CANNOT BE USED AS A PLACE OF DEPOSIT FOR GOODS ONLY 98 99 NOTICES BY INNKEEPER OFFERING ΤΟ TAKE CHARGE OF 100 MUST BE BROUGHT TO THE KNOWLEDGE OF THE GUEST 100 100 special bailee by custom. Innkeeper is a IN treating of the liability of the innkeeper at Common Law, we must consider him as a special bailee by the custom of the realm, and briefly consider that head of the law of bailment under which the innkeeper's liability is classed. A bailment is a delivery of goods in trust, on a contract, expressed or implied, that the trust shall be duly executed and the goods re-delivered, as soon as the time or use for which they were bailed shall have elapsed or be performed, (a) the two essential features in a bailment being a delivery and a trust. Bailments are divided into three classes :-First, where the bailment is for the exclusive benefit of the bailor, (a) Jones on Bailments, p. 117. both parties. in which the bailee is only liable for gross negligence; second, where the bailment is for the exclusive benefit of the bailee, in which the bailee is liable for the slightest negligence; and thirdly, where the bailment is for the benefit of both Bailment for parties, in which the bailee must use ordinary diligence; and the benefit of it is under this third head that the liability of innkeepers is generally classed, and therefore this class of bailment which we have to consider. "When a bailee either directly demands and receives a reward for his care, or takes the charge of goods in consequence of some lucrative contract, he becomes answerable for ordinary neglect, since, in truth, he is in both cases a conductor operis, and lets out his mental labour at a just price; thus, when clothes are left with a man who is paid for the use of his bath, or a trunk with an innkeeper, or his servants, or with a ferryman, the bailees are as much bound to indemnify the owners, if the goods be damaged through their want of ordinary circumspection, as if they were to receive a stipulated recompense for their attention and pains." (a) For, although the innkeeper is not actually paid for the custody of the goods, yet the fact of his putting up at an inn with goods in his possession, raises an implication that he not only requires shelter and refreshment, but also security for his property, and, therefore, such security must be considered as accessory to the principal contract, and the money paid for the entertainment as extending to the care of the goods. (b) And this principle was laid down by Lord Holt in the case of Lane v. Cotton, (c) that “ although a bargemaid and master of a ship receive their fare for the passage of travellers, and an innkeeper his pay for the accommodation and entertainment of them, but have no pecuniary reward for the mere custody of the goods belonging to the passengers or guests, yet they are obliged to take ordinary care of those goods, as a fuller and a mender are paid for their skill only, yet are answerable, ex locato,' for ordinary neglect, if the clothes be lost or damaged. "Nam et fullo et sarcinator, non pro custodiâ sed pro arte, mercedem accipiunt; et tamen custodia nomine ex locato tenetur.'" (d) (a) Jones on Bailments, p. 50. (b) Mason v. Thompson, 9 Pick. 280; Orange County Bank v. Brown, 9 Wend. 85, 114, 115. (c) 12 Mod. 483, 487, and Gaius D., 4, 9, 5. (d) Dig. lib. 4 tit. 9, 15; Pothier Pand. lib. 4, tit. 9, n. 4; Jones on Bailments, p. 94. Answerable damage guest or by act of God, or the King's enemies. The bailee, under this third head of bailment, is said to unless loss or be answerable for ordinary neglect, and since ordinary caused by the neglect is defined as the "omission of that care which every man of common prudence, and capable of governing a family, takes of his own concerns (a); it would appear that the liability of the innkeeper extends beyond this definition, for he has been held liable for the goods of his guest, if damaged or stolen whilst under his care as an innkeeper, by any person whatever; (b) and it is not sufficient for him to allege that there was no negligence on the part of himself or his servant, (c) but he is liable, unless the loss or damage be caused by the act of God or the king's enemies, or by the fault, direct or implied, of the guest. (d) Sir W. Jones' "Rigorous as this law may seem, and hard as it may explanation of actually be in one or two particular instances, it is founded this severity. on the great principle of public utility, to which all private considerations ought to yield; for travellers who must be numerous in a rich and commercial country, are obliged to rely almost implicitly on the good faith of innholders, whose education and morals are usually none of the best, and who might have frequent opportunities of associating with ruffians and pilferers, while the injured guest could seldom or never obtain legal proof of such combinations, or even of their negligence, if no actual fraud had been committed by them. Hence the prætor declared, according to Pomponius, his desire of securing the public from the dishonesty of such men, and by his edict gave an action against them, if the goods of travellers or passengers were lost or hurt by any means except 'damno fatali' or by inevitable accident." (e) Ulpian intimates that even this severity could not retain them from knavish practices, or suspicious neglect; (f) and adds as a reason for this severity: "Ne quisquam putet graviter hoc adversus eos constitutum; nam est in ipsorum arbitrio (a) Jones, p. 118. (b) Year Book, 10 Hen. 7, 26; 2 Cro. 189. (c) Shaw v. Berry, 31 Maine, 478. (d) Sibley v. Aldrich, 33 N. H. 553; Mason v. Thompson, 9 Pick. 280. (e) At hoc edicto omnimodo, qui recepit, tenetur, etiamsi sine culpâ ejus res periit vel damnum datum est nisi si quid damno fatali contingit (Dig. lib. 4, tit. 9, 3-10; Pothier Pand. lib. 4, tit. 9, n. 7). (f) Nautæ caupones stabularii quod cujusque salvum fore receperint nisi restituent in eos judicium dabo (Dig. lib. 5, 9—1). cum in ne quem recipiunt, et nisi hoc esset statutum materia daretur The responsibility of the innkeeper under the Roman law, Innkeeper's does not seem to have extended to losses through the mis- the old Roman liability under conduct of other transient guests at the inn, unless the law. goods were expressly deposited with the innkeeper, or were stolen by the innkeeper's domestics or boarders. (c) The rules laid down in the modern code of France extend the liability as it exists in England (d) to losses by the misconduct of all other guests, whether transient or not. (e) The liability of the innkeeper attaches, however, only upon the happening of certain contingencies, and these contingencies it is proposed to consider, shortly, in order. And first, it is necessary that the goods should have been received by the innkeeper within the inn, (ƒ) although the innkeeper may, Goods must under certain circumstances, take upon himself, by implica- received infra tion, the custody of the goods before they come within his hospitium inn; as where he sends a conveyance to carry his guest's luggage from a railway station or steam boat to his inn. (g) have been "guest," not So also they must be received by him, in his capacity as And from a innkeeper, and from a person who comes to the inn as a from a friend guest, for if he were entertaining the owner of goods, as a or neighbour. friend or neighbour, and such friend or neighbour were to deposit his goods there, the innkeeper would not be responsible for their safe custody, unless by a special arrangement, and then only as a simple bailee. (h) It seems, however, to Not so under have been different under the old Roman law, for, under that the Roman law, if an innkeeper entertained a friend gratuitously, he was nevertheless responsible for his friend's goods, as though he (a) Pothier Pand. lib. 4, tit. 9, n. 1. (b) Jones on Bailments, p. 95-6. (c) Pothier Traité de dépôt, n. 79; Dig. lib. 47, tit 5, 1–6. (d) Cashill v. Wright, 6 E. & B. 893; Packard v. Northcraft, 2 Met. Ky. 439; Cromwell v. Stephens, 2 Daly 15. (e) Code Civile Art. 1952, 1953. (f) Infra hospitium. Cayles' Case, 8 Co. 32. (4) Dickenson v. Winchester, 4 Cush. 114. (h) Mateer v. Brown, 1 Cal. 221. law. |