Horse to be de his own meat. horse has eaten out; and the jury is to judge if sufficient were tendered. Bull, N. P. 45. But an horse committed to an innkeeper may be detained tained only for only for his own meat, and not for the meat of the guest, or of any other horse; for the chattels in such case are only in the custody of the law for the debt that arises from the thing itself, and not for any other debt due from the same party; for the law is open for all such debts, and doth not admit private persons to take reprisals. 3 Bac. Abr. 668. 14 Vin. Abr. 438. 1 Bulst. 207. 11 & 12 W. 3. c. 15. § 2. and vessels to be sealed. Also by stat. 11 & 12 W. 3. c. 5. § 2. If any innkeeper, alehouse-keeper, victualler, or sutler, in giving any account or Reckoning to be reckoning in writing, or otherwise, shall refuse or deny to give in particulars; in the particular number of quarts or pints for which demand is made, or shall sell in measures unmarked, it shall not be lawful for him, for default of payment of such reckoning, to detain any goods or other thing belonging to the person or persons from whom such reckoning shall be due, but he shall be left to his action at law for the same; any custom or usage to the contrary notwithstanding. Goods suffered to be taken In like manner, if the innkeeper give credit to the party for that time, and let him go without payment, then he hath waived away, not to be the benefit of the custom, and must rely on his other agreement; for no person can in any case retain, where there is a special agreement, because then the other party is personally liable. Jones v. Thurloe, 8 Mod. 172. retaken. S. C. An innkeeper may detain for his keep a horse left with him to be kept, though the persons who left him had no right to him, and though such persons did not stay in the inn; for leaving his horse at an inn makes a man a guest there. Yorke v. Grenaugh, 2 Ld. Raym. 866. But an innkeeper cannot detain a horse for his keep, unless he were bound to receive the person who brought him as a guest; but he has a remedy upon the contract. And if a man commit his horse to an innkeeper, and he put him to pasture, he may detain the horse until he be satisfied for the meat; for the pasture of such persons, set up by the law for entertainment, hath the same privilege with the stables. 2 Roll. Abr. 85. Where a man desired the innkeeper to let his horse have no more food, it was held liable to a detainer notwithstanding. Gilbert v. Berkeley, Skin. 648. pl. 6. If a horse committed to an innkeeper be detained by him for his meat, and the owner take him away, the innkeeper must make fresh pursuit after him, and retake him; otherwise the custody of him is lost, for he cannot retake him at any other time; for if a distress be rescued, and the party upon fresh pursuit do not retake it, the distress is lost. 2 Roll. Rep. 238. But if a horse be committed to an hostler, who detains him for his meat, and afterwards the owner agree that he shall retain him till he be satisfied, here he hath not only the custody of him as a distress, but also the property in him as a pledge; and if the owner take it from him, he may not only retake it upon fresh pursuit, but wherever he meets it; because he had a property by such agreement, and a man that hath a property may retake his own wherever he meets it. 2 Roll. Rep. 238. : not to be used. Not to be sold, except by cusand Exeter. An innkeeper that detains a horse for his meat, cannot use Goods seized him, because he detains him as in custody of the law and by consequence the detention must be in the nature of a distress, which cannot be used by the distrainer. 3 Bac. Abr. 668. But by the custom of London and Exeter, if a man commit an horse to an hostler, and he eat out the price of his head, the hostler may take him as his own, upon the reasonable appraisement of four of his neighbours; which was, it seems, a custom arising from the abundance of traffick with strangers, that could not be known, to charge them with the action. But the innkeeper hath no power to sell the horse, by the general custom of the realm. 3 Bac. Abr. 668. Jones v. Thurloe, 8 Mod. 172. tom in London So in the case of Jones v. Pearle, 1 Stra. 557. In trover for Jones v. Pearle, three horses, the defendant pleaded that he kept a public inn 1 Str. 557. at Glastonbury, and that the plaintiff was a carrier, and used to set up his horses there, and 367. being due to him for keeping the horses, which was more than they were worth, he detained and sold them, as well he might: but on demurrer, judgment was given for the plaintiff, an innkeeper having no power to sell horses, except by special custom, as in the city of London. And Lien once partbesides, when the horses had been once out, the power of de- ed with is gone taining them for what was due before did not subsist at their for ever. coming in again. XIV. Goods of a Guest stolen out of an Inn.. Inns were allowed for the benefit of travellers, who have cer- Innkeepers antain privileges whilst they are in their journeys, and are in a swerable for more peculiar manner protected by the law. The law obliges an goods stolen. innkeeper to keep the goods of persons coming to his inn, causâ hospitandi, safely, so that pro defectu hospitatoris hospitibus damnum non eveniat ullo modo. Per Ld. Ellenborough C.J. 4 M. & S. 310. And although the guest doth not deliver his goods to the innholder to keep, nor acquaints him with them, yet if they be stolen, the innkeeper shall be charged. Calye's Case, 8 Rep. 33. If a man comes to an inn and delivers his horse to the hostler, and requires him to be put to pasture, which is done accordingly, and the horse is stolen, the innholder shall not answer for it. Calye's Case, 8 Rep. 32. If an innkeeper bid his guest take the key of his chamber and Dalt. c. 56. lock the door, and tell him that he will not take the charge of the Blackerby,169. goods, yet if they be stolen he shall be answerable, because he is charged by law for all things which come to his inn; and he cannot discharge himself by such or the like words. But if there be evidence that the guest accepted the key, and took on himself the care of his goods, it is for the jury to determine whether this evidence of his receiving the key proves that he did it animo custodiendi, and with a purpose of exempting the innkeeper, or whether he took it merely because the landlord forced it on him, or for the sake of securing greater privacy, in order to prevent persons from intruding themselves into his room. Per Ld. Ellenborough C.J. Burgess v. Clements, 4 M. & S. 310, 311. Per Ld. Ellen S. C. The cases shew, that the rule is not so inveterate against the borough C. J. innkeeper, but that the guest may exonerate him by his fault, as if the goods are carried away by the guest's servant or companion whom he brings with him. For thus it is laid down in Calye's Case, 8 Rep. 33." that if the servant of the guest, or he who comes with him, or he whom he desires to be lodged with him, steal or carry away the goods, the innkeeper shall not be charged; for there the fault is in the guest to have such companion or servant;" which shews that for such damage as is occasioned by the misconduct of the guest, he shall not be entitled to complain, or to have any recompence. Who shall be deemed a guest in this respect. So, where the plaintiff's servant came to the inn, and desired to have the liberty of leaving the goods, which he could not dispose of in the market, until the next week; which proposal was rejected, whereupon he sat down in the inn as a guest, with the goods behind him, and, during the time, the goods were taken away; it was held, that although his request was not complied with, he was entitled to protection for his goods during the time he continued in the inn as a guest. Bennet v. Mellor, 5 T.R. 273. It is clear that the goods need not be in the special keeping of the innkeeper in order to make him liable; if they be at the inn, that is sufficient to charge him. Per Buller J. Š.C. But an innkeeper is bound to answer for those things only that are infra hospitium. If therefore he refuse, because his house is full, to receive a person, who thereupon says he will shift, and then is robbed, the host shall not be charged; but without such cause he cannot discharge himself by words only. Bull. N. P. 73. If an innkeeper say his house is full, and refuse to take in the guest, it is a good excuses and if false, the innkeeper is liable to an action for refusing to take in the guest. Per Buller J. Bennet v. Mellor, 5 T. R. 273. An indictment against an innkeeper for not receiving a sick person must state that he was a traveller. Rex v. Luellin, 12 Mod. 445. Holt C. J. doubted whether a man is a guest by setting up his horse at an inn, though he never went into the inn himself; but the other three justices held that such person is a guest by leaving his horse, as much as if he had staid himself, because the horse must be fed, by which the innkeeper has gain; otherwise, if he had left a trunk, or a dead thing. York v. Grindstone. 1 Salk. 388. So if a man come to an inn with a hamper, in which he hath certain goods, (to wit, hats, as the case was,) and depart leaving it with the host, and two days after come again, and in the time of his absence this was stolen; he shall not have any action against the host, because he was not a guest at the time of the stealing, and the host had no benefit by the keeping thereof, and therefore shall not be charged for the loss thereof in his absence. 1 Roll. Abr. 2. If one come to an inn, and make a previous contract for lodging for a set time, and do not eat or drink there, he is no guest, but a lodger, and so not under the innkeeper's protection: but if he eat and drink, or pay for his diet there, it is otherwise. Parker v. Flint, 12 Mod. 255. So if an attorney hire a chamber in an inn for a whole term, the host is not chargeable with any robbery in it, because the party is as it were a lessee. Mo. 877. An innkeeper is not bound to find any more than convenient lodging-rooms and lodging for his guests. Therefore, where a person, originally coming as a guest, applied for a room for the purpose of exhibiting goods for sale, the use of which was granted to him by the innkeeper's wife, who at the same time told him, that there was a key in the door, and that he might lock it, (which was equivalent to telling him that he must take charge of it,) but which he neglected to do, and during the night a part of the goods were stolen; it was held that the innkeeper was not responsible. Bayley J. observed, that "to hold in such a case that the defendant is liable, would be to make him liable not for his own negligence but the negligence of his guest; for grosser negligence can hardly be stated; and it would be to enable the plaintiff to take advantage of his own negligence, which has been the sole cause of the loss." Burgess v. Clements, 4 M. & S. 306. If a guest take upon himself the exclusive charge of the goods which he brings into the house of an innkeeper, he cannot afterwards charge the innkeeper with the loss. A landlord is not bound to furnish a shop to every guest who comes into his house; and if a guest takes exclusive possession of a room, which he uses as a warehouse or shop, he discharges the landlord from his common law liability. Per Le Blanc J. Farnwall and another v. Packwood, York Spring Ass. 1816. 1 Stark. N. P. 247. 1 Holt. Rep. 209. An innkeeper, though licensed to let post horses, is not liable to an action for refusing to furnish them to a traveller, though he have a chaise and horses at liberty at the time of the application, and though a reasonable price be tendered to him for the hire. Dicas v. Hides, York Spring Ass. 1816. cor. Le Blanc J. 1 Stark. N. P. 247. 1 Holt. Rep. 207. Soldiers billeted are guests. Clayt. 97. In Com. Dig. tit. Action on the case for negligence (B), it is said they must be quartered fourteen days. XV. Guests stealing Goods. A guest in a common inn, rising in the night-time, and carrying goods out of his chamber into another room, and from thence to the stable, intending to ride away with them, is guilty of felony; for the least removal of the thing taken from the place where it was before is a sufficient asportation for this purpose. Dak. c. 40. § 87. 1 Haw. c. 33. § 18. See tit. Larceny, vol. iii, [NOTE. The universities are generally excepted out of these acts concerning alehouses.] A. B. Precept to the High Constable to issue Warrants to the Petty Constables, to summon Alehouse-keepers to be licensed; on 5 & 6 Ed. 6. c. 25. 2 Geo. 2. c. 28. and 26 Geo. 2. c. 31. Westmorland. within the To John Bowness, gentleman, high constable of IN pursuance of the statutes in that case made, these are to require you, on sight hereof, to issue out your warrants to all petty constables belonging to the several constablewicks within your said ward, in the form, or to the effect hereon indorsed. Given under our hands and seals the day of Form of the Warrant as above directed: J. P. K. P. on the BY virtue of a warrant from his majesty's justices of the peace acting within the said hundred to me directed, you are hereby required to give notice to all licensed innkeepers and alehousekeepers within your constablewick, and also to all persons unlicensed (so far as the same shall come to your knowledge) who do intend to offer themselves to be licensed at the next general meeting of the said justices for that purpose, that they do personally appear before the said justices at day of September next, at the hour of in the forenoon of the same day, to take or renew their licenses for the year ensuing; and also to give them notice, that every person then and there to be licensed, must personally enter into a recognizance in the sum of 10l. together with two sureties in 5l. each, or one surety in 10l. that they will not use or suffer any unlawful games, and that they will keep good order and rule within their respective houses and other places: and if any shall be hindered by sickness, or other reasonable cause to be allowed by the said justices, that he must procure two sureties then and there to be bound in like manner in 10l. each. And unto such persons as have not been licensed for the year preceding, you are further to give notice, that no license will be granted to any of them, unless he shall also, at the same time and place, produce a certificate under the hands of the minister and the major part of the churchwardens and overseers, or else of three or four reputable and substantial householders and inhabitants (a) of the place where he inhabiteth, setting forth that he is of good fame, and of sober life and conversation. And you are to make a return to the said justices, at the same time and place, in writing under your hand, containing the names of all such persons as you shall have summoned so to appear before them as is aforesaid, together with their dwelling places, and the signs by which their houses are known. Hereof fail not. Given under my hand at Raisbeck, in the said county, the day of in the year of our Lord-. John Bowness, high constable. (a) See stat. 26 G. 2. c. 31. § 2. ante. |