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MCKEE V. OWEN.

doctrine that the liability for luggage was the same as for freight, but held that it was not so unusual for passengers to carry their expense money in their trunks as to make it improper when so carried, to include it in the baggage; and they speak of it as a hardship to compel a passenger to keep it about his person, as he would be compelled to do, if it were not treated as baggage, for which carriers in possession are answerable.

The view taken in both these decisions is clear, that for articles upon his person the passenger must answer himself. And I am unable to see any other rule which is not full of difficulty. It is one of the first principles of the law of bailments, that a carrier may retain any baggage for passage money. It is said to have been formerly supposed that he might detain the passenger also, but this absurd idea came from a dictum which is properly regarded as preposterous. Ang. on Carriers, $375, note 5. It is very plain that no such lien can be enforced by either searching or stripping a passenger; and there is no lawful method of reaching what has never been in the carrier's custody.

It was claimed on the argument that the liability of carriers and innkeepers was put by the courts on the same footing, and therefore that the same rules must apply to both. It is undoubtedly true that many judges have used this resemblance by way of illustration, and some, misled by analogy, have spoken of the two as identical. But it is not maintainable as matter of law that both are held to the same relative liabilities; and, if they were, it would not follow that all property which is with the traveler infra hospitium in an inn, would be regarded as having come into the hands of a carrier, who is transporting a passenger who retains possession of it. It has never been held that every thing on board is in the carrier's custody. All that can be said by way of classifying these callings is that the law has seen fit to

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impose on these two classes of bailees more rigorous liabilities than it attaches to others. The common carrier is liable at all events (except as to enemies or inevitable accident) where he is liable at all. The innkeeper is not liable according to any adjudged case for robbery or other violence from without, or fire. Calye's case — 8 Co. 32— (1 Smith Lead. Cas. 47), which is the leading case upon this subject, declares that the innkeeper “shall not be charged, unless there be a default in him or his servants, in the well and safe keeping and custody of their guests goods and chattels within his common inn.”

It appears also from that case, as well as numerous others, that there is not any strict rule which will confine a guest's recovery to ordinary baggage; but the innkeeper will be liable for any articles received in the inn with the traveler, whether money or goods, or for beasts or carriages, and to any extent. Kent v. Shuckard, 2 B. & Ad. 803; 2 Kent's Com. 592-3-4-5. And herein, therefore, he is liable beyond a passenger carrier.

/There is a resemblance in some of their functions as well as in their liabilities. Both may board and lodge their guests, sometimes very conveniently, and sometimes very inconveniently. There has never been a time when a traveler could be expected to remain without sleeping accommodations at night through a voyage, and it would be expecting a great deal of him to suppose he could be very vigilant when asleep/ It would certainly require more close watching to keep him from being robbed in an open cabin, than in a stateroom. The law can hardly, I think, be presumed to intend that a carrier may lawfully leave a passenger unprotected from manifest danger, and yet be responsible for any loss which he may trump up, when he has been put in comparative security. Nor does it seem to me entirely reasonable, to claim, as is done by plaintiff, that her clothing and other personal articles are in custody of the carrier, when the carrier is

MCKEE V. OWEN.

locked out, and not in his custody when the passenger is out of her room. It seems to me there is no middle ground where liabilities can appear and vanish from time to time as the passenger goes hither or thither. If | these articles are baggage, the law declares the carrier liable at all events. If they are not, he has nothing to do with them./

/ The only ground on which the occupant of a stateroom can maintain this peculiar liability, is, that the carrier has not merely become quoad hoc, like an innkeeper, but that he is an innkeeper in fact. There is certainly no authority for any such claim, nor, as it seems to me, is there any more reason. The occupations are essentially different. Boarding and lodging on a vessel are only necessary incidents to traveliny on it! To travel in comfort one must both eat and sleep. Such provision has been made ever since men have traveled, but it has never yet been held that a shipmaster was an innkeeper, because he did not starve his passengers, or make them sleep in crowds. ' If defendants are not liable as carriers, they are not liable at all. / And the declaration proceeds on this assumption.

There are some cases which have held that there was a liability for baggage, even where it has been kept in a passenger's private room. Upon this point the current of authority, both in England and America, seems to hold that it becomes in such cases a question of fact, whether the owner retained it under his personal supervision and control, or whether the carrier had also qualified possession. Richards v. The London, Brighton & Southcoast Railway Co. 7 C. B. 839. No such difficulty could arise concerning articles kept in the dress, or on the person.

Although the impossibility of protecting themselves against losses is no answer to an action, where the law requires impossibilities of carriers (as it sometimes does), yet it is a very strong argument against extending their

HUBBARD 0. WINSOR.

liabilities beyond the principles already established. And it needs but a small acquaintance with the usual circumstances of navigation, to become satisfied that, without police powers which no civilized community would tolerate, carriers could very seldom prevent or redress any such depredations as are claimed to have occurred in the case before us.

The facts alleged, it is not proper to comment on, as the jury would be the proper tribunal to weigh the extraordinary matters narrated. But the fact that in these cases carriers must be at the mercy of travelers, who can not usually be contradicted as to the extent of their losses, and may therefore recover what they see fit to swear to, renders some caution necessary against opening the door unwarrantably.

I think the judgment below should be affirmed.
Martin Ch. J. concurred.

The court being thus equally divided, the judgment below was affirmed.

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Langdon Hubbard and others v. Richard Winsor and

another.

Partnership property, assessment of. Certain partnership property, alleged to have

been held in joint tenancy, was handed in for taxation, and taxed as partnership property. Held, that the assessment was properly made, as there

could be no individual assessment in such a case. Board of Supervisors, effect of adjournment of: Tax, mode of determining amount

Of. The law (1 C. L. $ 807,) requires supervisors to act at "their session in October." They met in pursuance thereof, and at a subsequent adjourned meeting - November 12th-fixed the amount of taxes for the ensuing year. Instead of fixing a specific sum, to be raised by taxation, the Board directed a per centage on the assessed value. Held, that the session in October embraced all adjournments, although they might run into another month, and that the law merely refers to it by way of designation. Held further, that the designation of a per centage on a definite sum was just as certain as though it were calculated; nothing remaining to be done except simple computation.

HUBBARD V. WINSOR.

Equitable relief: Treasurer's bond, effect of delay in filing: Assessment roll: War.

rant. The proceedings required by law, and the filing of the Treasurer's bond having taken place after the time designated by law, but before the time required for the handing over of the assessment roll, it was held, that the delay was immaterial. Held further, that delay, beyond the time required by law, in appending the warrant to the assessment roll, furnished no ground

of relief. Equitable relief: Misdescription of lands for assessment by owner. Where a mis

description of lands in an assessment roll was caused by following a list furnished by the parties themselves, they were not allowed to claim it as

a ground of equitable relief, and were remitted to their legal remedies. Equity pleadings, evidence. Where evidence is not applicable to any allegations

in the pleadings, it can form no basis for relief. — 6 Mich. 133; 11 Id. 529; 13 Id. 367.

Heard October 19th. Decided November 10th.

Appeal from Huron Circuit in Chancery.

The bill was filed to restrain the collection of certain taxes, alleged to be illegally assessed against complainants jointly, upon certain lands and personal property in the township and county of Huron, for the year 1862.

Upon the filing of the bill the circuit judge granted a temporary injunction, and upon final hearing of the cause, upon pleadings and proofs, made the same perpetual by decree.

The facts are stated in the opinion, Wm. T. Mitchell, for complainants.

1. The lands upon which the taxes were assessed were owned by the complainants in their several names, as joint owners or tenants in common, and were therefore improperly assessed to them as co - partners in the partnership name; their several interests should have been assessed, or, if not known, they should have been assessed as unknown. They could not legally be assessed to the partnership. — Comp. L. SS 802, 800, and subd. 6, § 804.

Personal property only can be assessed in the partnership name. Id. $ 793.

When real estate is held by partners for the purpose of the partnership, they do not hold as partners, but as tenants in common, and the rules relative to partnership

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