keep them day and night without abstraction or loss. The innkeeper is accordingly liable for the felonious taking of goods placed in his custody as innkeeper, and is responsible for the acts of his servants; indeed the property of a guest is, by legal implication, in the actual care and custody of the innkeeper, who by custom is responsible for its safety at all events with some rare exceptions, such as the act of God or the king's enemies (d). And the innkeeper is bound in law to keep the property of his guest safe, without any stealing or purloining (e), provided it be within the inn or its appurtenances; for if a man comes to a common inn, and delivers his horse to the ostler, directing that it be put to pasture, which is done, and the horse is stolen, the innkeeper will not be liable, because he is answerable for nothing that is out of his inn, but for such things only as are within it (ƒ). The innkeeper would not, however, at common law, be liable for * loss of goods placed in a [* 242] room of which his guest had the special charge, or where such loss was occasioned by the guest's own negligence (ƒ).

The responsibility imposed upon an innkeeper at common law has been much diminished by the stat. 26 & 27 Vict. c. 41, reciting that "it is expedient to amend the law concerning the liability of innkeepers in respect of the goods of their guests." It enacts as follows-That no innkeeper shall be liable to make good to his guest any loss of or injury to goods or property brought to his inn (g) (not being a horse or other live animal, or any gear appertaining thereto, or any carriage) to a greater amount than the sum of 301., except — (1.) Where such goods or property have been stolen, lost, or injured through the wilful act, default, or neglect of the innkeeper or any servant in his employ; or (2.) Where such goods or property have been deposited expressly for safe custody with the innkeeper, provided that in the case of such deposit the innkeeper may, if he think fit, require, as a condition of his liability, that such goods or property shall be deposited in a box or other receptacle, fastened and sealed by the person depositing the same (h).

If, however, the innkeeper refuse to receive for safe custody, as just mentioned, the goods or property of his guest, or if such guest, through any default of the innkeeper, be unable to deposit his goods or property as

(d) Dansey v. Richardson, 3 E. & B. 144. (e) Calye's Case, 8 Rep. 32. (f) Calye's Case, supra; Dansey v. Richard son, 3 E. & B. 144.

(f) Burgess v. Clements, 4 M. & S. 306; Cashill v. Wright, 6 E. & B. 695; Morgan v. Ravey, 6 H. & N. 265.

(g) By sect. 4, "the word 'inn' shall mean any hotel, inn, tavern, public-house, or other place of refreshment, the keeper of which is now by law responsible for the goods and

property of his guests; and the word 'innkeeper' shall mean the keeper of any such place.'

(h) Sect. 1. Of this section the innkeeper must cause at least one copy, printed in plain type, to be exhibited in a conspicuous part of the hall or entrance to his inn, and he will be entitled to the benefit of the act in respect of such goods or property only as may be brought to his inn while such copy shall be so exhibited. Sect. 3.

yer v. Hannibal & St. Joseph Railroad Co., 37 Mo. 240; Simmons v. New Bedford Steamboat Co., 97 Mass. 361, 368; Penn. R. R. Co. v. Henderson, 51 Penn. St. 315. As it regards baggage and luggage, carriers of passengers are said to have the liabilities of common carriers. On this subject, see Jones v. Voorhees, 10 Ohio, 145; Cole v. Goodwin, 19 Wend. 251; Merrill v. Grinnell, 30 N. Y. (3 Tiff.) 594; Dunlap v. Int. St. Co., 98 Mass. 371; Miss. Cent. R. R. v. Kennedy, 41 Miss. 671; Smith v. Boston & Me. R. R., 44 N. H. 325; Cin. & Chicago Air Line R. R. v. Marcus, 38 Ill. 219. The duties of railroads as to passengers and their baggage are, to a greater or less extent, regulated by statute in the different States.

aforesaid, the innkeeper will not be entitled to the benefit of the act in respect thereof (i). (558)

Carriers by water.

[*243]

Although, as recently decided, the Carriers' Act extends protection where the contract is to carry goods partly by land and partly by water, and the loss has occurred during the transit by land (j), it does not apply to the conveyance of goods in a sea-going ship. In this case, accordingly, the parties interested must protect themselves by mutual stipulations, though the legislature has from time to time interposed with a view to modifying their arrangements.

The contract by which an entire ship, or some principal part of it, is let to a merchant for the conveyance of goods on a determined voyage to one or more places, is termed a charter-party (k), the charterer of the ship causing it to be laden wholly or in part with goods belonging to other persons; in relation to whom it seems that he is to be considered as owner of the ship (1). Now, when goods are put on board ship in pursuance of a charter-party, the practice is that the master signs for them bills of lading, usually two or three in number, the charter-party being the instrument and evidence of the contract for conveyance, and the bill of lading the evidence of the shipping of the particular merchandize to be conveyed (m). This latter instrument operates in part as an acknowledgment that the goods specified in it have been shipped, and in part operates as an undertaking that such goods shall be delivered at the distant port to the consignee or his assigns, or to the order of the consignor, in like condition, subject to certain exceptions, as when shipped (n). * The bill of lading is thus a symbol of the property referred to in [*244] it, and, as formerly stated (o), the vendee and consignee of goods at a distant port may, by assigning over this instrument to a bona fide transferee, defeat the right of stoppage in transitu vested in the vendor in the event of his (the vendee's) insolvency; upon this rule, however, being engrafted the qualification that by indorsing over the bill of lading, the vendor's right may be defeated. The actual holder of an indorsed bill of lading may consequently, by indorsement, transfer a greater right than he himself had; that is to say, he may give an indefeasible right in lieu of the defeasible title which he himself possessed (p). This peculiar property of a bill of lading is derived from its negotiable quality, and is limited to the case where the person who trans

(i) Sect. 2.

(n) As to the passing of the property in

Le Conteur v. London and So. West. R. goods by a delivery of the bill of lading, see C., L. R. 1 Q. B. 54. Shepherd v. Harrison, L. R. 4 Q. B. 196.

(k) Abbott on Shipp., 11th ed., 195.

(2) Id. 34.

(m) Id. 235.

(0) Ante, pp. 163-5.

(p) Jenkyns v. Usborne, 7 M. & Gr. 699.

(558) The responsibilities of an innkeeper are said to be nearly coincident with those of a common carrier. See Berkshire Woolen Co. v. Proctor, 7 Cush. (Mass.) 417; Mason v. Thompson, 9 Pick. (Mass.) 283; Sibley v. Aldrich, 33 N. H. 553; Cohen v. Frost, 2 Duer, 341. As to distinctions between innkeepers and lodging-house keepers, see Pinkerton v. Woodward, 33 Cal. 557, 596; Walling v. Potter, 35 Conn. 183; Wintermute v. Clark, 5 Sandf. 242; Bernstein v. Sweeny, 1 Jones & Sp. 271. See, generally, as to the liabilities of innkeepers, Read v. Amidon, 41 Vt. 15; Kelsey v. Berry, 42 Ill. 469; Wilkins v. Earle, 44 N. Y. (5 Hand) 172; S. C., 4 Am. Rep. 655; Shaw v. Berry, 31 Me. 478; Norcross v. Norcross, 53 id. 163; Treiber v. Burrows, 27 Md. 130; Simon v. Miller, 7 La. Ann. 360. As to the meaning of "guest," see Hall v. Pike, 100 Mass. 495; Pinkerton v. Woodward, 33 Cal. 577; Carter v. Hobbs, 12 Mich. 52; Washburn v. Jones, 14 Barb. 193; Walling v. Potter, 35 Conn. 183.

VOL. II.-25

fers the right is himself in possession of, and in a situation to transfer the instrument (q).

The stat. 18 & 19 Vict. c. 111, intituled "An Act to amend the Law relating to Bills of Lading," leaves untouched the right of stoppage in [* 245] transitu enjoyed by the consignor of goods; by its first section, however, there is vested in the indorsee of a bill of lading the right to sue and the liability to be sued upon it in like manner as if the contract contained therein had been made with himself (r). Moreover, by sect. 3 of the same statute, the bill of lading in the hands of a consignee or indorsee for value, representing goods to have been shipped on board a vessel, is now conclusive evidence of such shipment as against the master or other person signing it, notwithstanding that such goods, or some part thereof, may not have been so shipped, unless the holder of the bill of lading had actual notice on receiving the same that the goods had not been in fact put on board; and the master or other person signing the bill may exonerate himself in respect of such misrepresentation by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or of some person under whom the holder claims (s).

A bill of lading signed by the captain of a ship is not only an acknowledgment by him of the receipt of the goods mentioned in it, it is also an undertaking that such goods are to be delivered, in like "good order and condition," at the distant port-subject, however, to these important exceptions—“ the act of God, the queen's enemies, fire, and all and every other dangers and accidents of the sea, rivers, and navigation of what kind and nature soever.' Within one or other of these exceptions, therefore, or of any additional exceptions which may be inserted, it behoves the shipowner, if charged for loss of, or damage done to, the goods, to bring himself (t), though his liability to make compensation for such loss or damage has been limited, as [*246] presently mentioned.

Where an express contract has been entered into for the conveyance of a passenger on board a sea-going ship, the rights of the parties will be governed by its terms, interpreted by the usage of the particular trade or voyage; and where the contract is not express, it may be evidenced by such usage (u). By reason, however, of the impositions practised upon passengers on board ship, and the hardships to which they are often subjected, various enactments (x)

(9) We read in a recent judgment the following passage explanatory of the text. A bill of lading, in the common form, for the delivery of goods to "order and assigns," is a negotiable instrument which, by indorsement and delivery, passes the property in the goods to the indorsee, subject only to the right of an unpaid vendor to stop them in transitu. The indorsee may deprive the vendor of this right by indorsing the bill of lading for valuable consideration, although the goods are not paid for, or bills have been given for the price of them which are certain to be dishonoured, provided the indorsee for value has acted bona fide and without notice. Although a bill of lading is a negotiable instrument, it is so only as a symbol of the goods named in it; and although the shipper may have indorsed in blank a bill of lading deliverable to his assigns, his right is not

affected by any appropriation of it withou his authority; and if it be stolen from him or transferred without his authority, a subsequent bonâ fide transferee for value cannot make title under it as against the shipper of the goods, for in the cases put there could be no lawful assigns of the shipper, and consequently the bill of lading could have no existence as a negotiable instrument. Judgm., Pease v. Gloahec, L. R. 1 P.C. 227-228, citing Gurney v. Behrend, 3 E. & B. 634.

(r) Ďracachi v. Anglo Egyptian Nav. Co., L. R. 3 C. P. 190.

(8) See Jessel v. Bath, L. R. 2 Ex. 267. (t) Kay v. Wheeler, L. R. 2 C. P. 302; Ohrloff v. Briscall, L. R. 1 P. C. 231; Phillips v. Clark, 2 C. B. N. S. 156.

(u) Abbott on Shipp., 11th ed., 186-7.

(x) 17 & 18 Vict. c. 104, amended by 26 & 27 Vict. c. 51; see also 31 & 32 Vict. c. 119.

have been made by the legislature containing provisions calculated to promote their safety, health, personal comfort, and well-being.

Regard being had, however, to the provisions of Lord Campbell's Act (y), and to the great pecuniary responsibilities which might attach to shipowners in case of loss, the statute law provides as follows:

That the owners of any ship, whether British or foreign, shall not, where any of the following events occur without their actual fault or privity-sc., where loss of life or personal injury is caused to any person carried in such ship, or where damage or loss is caused to any goods, merchandize, or other things whatsoever on board such ship-be answerable in damages to an aggregate amount exceeding 15l. per ton of the ship's tonnage in respect of loss of life or personal injury, either alone or together with loss of, or damage to,. goods, merchandize, or other things, nor to an aggregate amount exceeding 81. per ton of the ship's tonnage in respect of loss of, or damage to, goods, merchandize, or other things, whether there be in addition loss of life, or personal injury or not (z). And further, it is provided that no owner of any sea-going ship* shall be liable to make good, to any extent whatever, any loss [* 247 ] or damage which may happen without his actual fault or privity to any goods or merchandize on board such ship by reason of fire, or to any gold, silver, diamonds, watches, or precious stones on board such ship by reason of robbery or embezzlement thereof, unless the owner or shipper of the same has, at the time of shipment, inserted in his bills of lading, or otherwise described in writing to the master and owner of such ship the true nature and value of such articles, or beyond the value of the ship and its freight, where, without his actual fault or privity, any damage or loss is caused to goods, merchandize, or other things on board such ship (a).

We have thus considered in order the three points specified at page 154 as deserving to be noticed in connection with a simple contract, the last of these having been "the thing to be done or not to be done." In treating, under this head, of various species of contracts, an arrangement was adopted which may have appeared to the reader in some respects defective, contracts having been divided into: (1), such as are required by statute or (2) by mercantile usage to be in writing; and (3), other contracts (b). Such a division of the subject, however, was adopted on the ground of its simplicity and practical utility, rather than because it is strictly accurate. Some important species of contracts are, from their very nature, almost necessarily evidenced by writing; and to others, which mainly fall under the particular head heretofore assigned to them, writing has, by positive enactment, in this or that particular been made essential. Such discrepancies, which to the logician may seem objectionable, in truth result from the combination and admixture, according to our constitutional system, of a written with * an unwritten law, from [* 248] the mode in which our written law has, from time to time, been fashioned and put together, and from the gradual though ceaseless influence of mercantile usage, which has fixed its impress upon our law of contracts.

(y) Ante, pp. 150, 151.

(2) 25 & 26 Vict. c. 63. s. 54.

(a) 17 & 18 Vict. c. 104, s. 503.

(b) Ante, p. 159.

[*249]

*CHAPTER X.

JURISDICTION OF SUPERIOR COURTS OF LAW.

WRONGS TO PERSONAL PROPERTY.

In pursuance of the plan indicated at a former page (a), we shall now enquire as to such wrongs as directly or indirectly affect the rights of property, and the remedies which our law has given to repair or redress them. In the present Chapter we shall speak of wrongs to personal, and in the ensuing Chapter of wrongs to real property, in accordance with our former division of property into personal and real (b): personal, which consists in goods, money, and all other moveable chattels, and things thereunto incident; a property which may attend a man's person wherever he goes, and from thence receives its denomination: and real property, which consists of such things as are permanent, fixed, and immoveable; as lands, tenements, and hereditaments, which are not annexed to the person, nor can be moved from the place in which they subsist.

We may, however, in limine, observe that torts cognisable at law may arise under circumstances akin to, or identical with, some which in the pages immediately preceding have been mentioned-fraud, negligence, or breach of duty, when causing damage, being usually remediable by action. Here, therefore, certain nice distinctions must be noticed--especially between warranty and false representation, and between negligence or breach of duty and breach of

contract.

*A contract, as formerly stated, is express or implied. A person [* 250] who contracts as agent thereby impliedly undertakes and warrants that he has authority in that capacity to contract; and should he, in fact have no such authority, he will be answerable according to the facts, i. e., the absence or presence of fraud, to an action of contract or of tort, in which may be recovered compensation for damages resulting as a direct consequence in the ordinary course of affairs from the alleged breach of contract or of faith (c); indeed, it holds generally true that if A fraudulently makes a representation which is false, and which he knows to be false, to B-, meaning that B shall act upon it, and B, believing it to be true, does act upon it, and so sustains damage, B may have an action against A for the deceit there being here such a conjunction of wrong and loss as will entitle the injured party to redress (d); and a principal is clearly responsible for damage caused by the fraud or misrepresentation of his general agent, though difficulty may occur in fixing the principal with responsibility for the fraud of a particular agent (e). Again, if

(a) Ante, p. 154.

(b) See Book II. ch. 2.

(c) Collen v. Wright, 7 E. & B. 301; 8 Id. 647; Simons v. Patchett, 7 E. & B. 568; Randell v. Trimen, 18 C. B. 786; Spedding v. Nevell, L. R. 4 C. P. 212.

Where a contract is signed by one professing to sign "as agent," but who has no principal existing at the time, and the contract would be wholly inoperative, unless binding upon the person who signed it, he is person

ally liable on the contract, and a stranger cannot, by a subsequent ratification of the contract, relieve the party signing it from that liability. Kelner v. Baxter, L. R. 2 C. P. 174.

(d) Gerhard v. Bates, 2 E. & B. 498-9; Pasley v. Freeman, 3 T. R. 51; Mullett v. Mason, L. R. 1 C. P. 559.

(e) Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259; Udell v. Atherton, 7 H. & N. 172.