the request of the passenger, to take charge of his personal luggage, and to convey it at their own risk. Munster v. S. E. Ry. Co., 4 C. B., N. S. 676; 27 L. J., C. P. 308. Where the company provides servants, to assist passengers to discharge their luggage on arrival, the liability of the company continues, until the servants have done their duty; therefore, where a passenger took articles with him into a railway carriage, and on getting out put them in charge of a railway porter to carry to a cab for him, it was held that the company's duty as carriers continued until they were placed in a cab. Richards v. L. Brighton & S. C. Ry. Co., 7 C. B. 839; Williams, J., dubitante. So, where the plaintiff held his bag in his hand, and delivered it to a porter on the platform to take to a cab. Butcher v. L. & S. W. Ry. Co., 16 C. B. 13; 24 L. J., C. P. 137. The company's duty is to have luggage given into their care, for carriage under their control, ready at the usual place of delivery till the passenger can in the exercise of due diligence call and receive it; the passenger's duty is to do so in a reasonable time. Patscheidner v. Gt. W. Ry. Co., 3 Ex. D. 153.

As to the right to sue for loss of luggage of a passenger, when his ticket has been taken by another person, see Marshall v. York & Newcastle Ry. Co.; Martin v. Gt. Indian Peninsular Ry. Co., ante, p. 581; where see also the principle to be deduced from these cases.

A carrier of passengers is liable only for the personal luggage of the passenger, and not for merchandise; and where a passenger by a railway, carries merchandise as personal luggage, the company is not liable for the loss, unless it be carried openly, so that its nature is obvious, and no objection has been made by the company's servants. Gt. N. Ry. Co. v. Shepherd, 8 Exch. 30; 21 L. J., Ex. 114, 286. In this last case there was no special contract, nor any limit imposed by the company's regulations except as to weight. If a passenger who knows, that by the regulations of the company, he is only entitled to take personal luggage, take merchandise without notice to the company, he cannot afterwards claim to be compensated in respect of its loss; but if the company choose to take merchandise as luggage, it does not lie in their mouth, if an article be lost, to say it is exempt from liability on the ground of the article being merchandise and not luggage. S. C.; Cahill v. L. & N. W. Ry. Co., 13 C. B., N. S. 818; 31 L. J., C. P. 271, Ex. Ch.; Belfast & Ballymena Ry. Co. v. Keys, 9 H. L. C. 556. The mere fact that a packet looks like merchandise, and is marked glass, is not enough to fix the company with knowledge that it is in fact merchandise, and so to make them responsible; S.CC. "Personal or ordinary luggage," means that class of articles which are ordinarily or usually carried by passengers as their luggage. Hudston v. Midland Ry. Co., L. R., 4 Q. B. 336; Macrow v. Gt. W. Ry. Co., L. R., 6 Q. B. 612. Sketches and drawings carried by an artist among his personal luggage, are not within the term "ordinary luggage" of a certain weight, usually carried free of charge on railways Mytton v. Midland Ry. Co., 4 H. & N. 615; 28 L. J., Ex. 385; nor are title deeds and money for use in certain causes, in which the plaintiff was engaged as a solicitor; Phelps v. L. & N. W. Ry. Co., 19 C. B., N. S. 321; 34 L. J., C. P. 259; nor bedding for the use of the plaintiff's household, when he shall have provided himself with a home. Macrow v. Gt. IV. Ry. Co., supra. Where a servant takes, as his ordinary luggage, that of his master, the latter cannot sue for loss of it. Becher v. Gt. E. Ry. Co., L. R., 5 Q. B.

241.

The Railway and Canal Traffic Act, 1854, s. 7, and the Regulation of Railways Act, 1868, s. 16, apply to passengers' luggage. Cohen v. S. E. Ry. Co., 1 Ex. D. 217; 2 Ex. D. 253, C.A., overruling Stewart v. L. & N. W. Ry. Co., 3 H. & C. 135; 33 L. J., Ex. 199, vide ante, p. 573. If a passenger take a ticket, for carriage, at a fare below the ordinary rate, on condition that he take no luggage, he must pay for any luggage he takes, although

the private act of the company allows passengers to take a fixed amount. Rumsey v. N. E. Ry. Co., 14 C. B., N. S. 641; 32 L. J., C. P. 244.

The plaintiff, on arriving by a railway at the terminus, deposited her bag, value 201., in the cloak-room, and paid 2d., and received a ticket for it, on the back of which was printed, "The company will not be responsible for any package exceeding the value of 10l."; it was held that the company were not liable for its loss, though caused by their negligence, as the plaintiff was bound by the condition. Van Toll v. S. E. Ry. Co, 12 C. B., N. S. 75; 31 L. J., C. P. 241; Harris v. Gt. W. Ry. Co., 1 Q. B. D. 515. Where the depositor knows generally that there are conditions on the back of the ticket, but does not know what they are, he is bound by the conditions. S. C.; Parker v. S. E. Ry. Co., 2 C. P. D. 416, C. A. If he knew that there was writing on the ticket but did not know or believe it contained conditions, the question for the jury is whether the defendants have done what was reasonably sufficient to give him notice of the conditions. S. C. But if he did not know there was any writing on the ticket he is not bound by the conditions. S. C.; Henderson v. Stevenson, 2 H. L. Sc. 470, ante, p. 581. See further, Burke v. S. E. Ry. Co., 5 C. P. D. 1, cited ante, p. 581, and Watkins v. Rymill, 10 Q. B. D. 178. The condition protects the company from liability not only for loss, but for delay in delivering it, at least where the delay is caused by no wilful act or default of the company, and without their privity or knowledge. Pepper v. S. E. Ry. Co., 17 L. T., N. S. 469, H. T., 1868, Q. B. See further, ante, pp. 562, 563, 581.

ACTIONS AGAINST COMMON INNKEEPERS.

This, like the action against carriers, may be treated as founded on tort or on contract. It is generally an action ex contractu for some breach of the contract, express or implied, which the innkeeper has entered into, or professes to be ready to enter into, with his guest, in relation to his personal entertainment.

An innkeeper at common law is answerable for the safe keeping of the goods of a guest. Calye's case, 8 Rep. 32; 1 Smith's Lead. Ca.; but it is only in respect of the goods of a guest that he is so liable. Strauss v. County Hotel, &c. Co., 12 Q. B. D. 27. Loss of a guest's goods is prima facie evidence of liability on the part of the innkeeper. Dawson v. Chamney, 5 Q. B. 164; 2 Kent, Com. 592; Story on Bailments, ss. 470-1; Morgan v. Ravey, infra. He may be exonerated by the negligence of the guest. Thus where money is lost, the ostentatious display of it in a public room at an inn, and leaving it there in an insecure box, is evidence of negligence conducing to the loss. Armistead v. Wilde, 17 Q. B. 261; 20 L. J., Q. B. 524; so, where the guest has taken the goods into his own custody, and leaves the door of the room unlocked. Burgess v. Clements, 4 M. & S. 306. The omission by the guest to leave valuable articles with the innkeeper, or to fasten his bedroom door at night, is not necessarily such negligence. Morgan v. Ravey, 6 H. & N. 265; 30 L. J., Ex. 131. The question for a jury will be, whether the loss would or would not have happened if the guest had used the ordinary care that may reasonably be expected from a prudent man. Cashill v. Wright, 6 E. & B. 891; Oppenheim v. White Lion Hotel Co., L. R., 6 C. P. 515. It is not enough to ask if the guest had been "grossly negligent." The obligation of the innkeeper extends to the horses and carriages of the guest. Calye's case, supra; Jones v. Tyler, 1 Ad. & E. 522; Bather v. Day, 2 H. & C. 14;

Liability of Innkeepers for Negligence.

585

32 L. J., Ex. 171. Where the guest, intending to return, had gone leaving his horse, and after the day of his intended return, his horse was injured by being driven in a carriage by the innkeeper's servant, it was held that the innkeeper was liable as such for the injury. S. C. But he is not liable for the injury to a horse by a kick from another horse if negligence in him and his servants is disproved. Dawson v. Chamney, ante, p. 584. As to the care he is bound to exercise towards the goods of his guest of which he retains possession by virtue of his lien, see Angus v. McLachlan, 23 Ch. D. 330. The real innkeeper is the person liable, and not a manager in whose name the licences have been taken out. Birch, L. R., 8 Ex. 135.

Dixon v.

By 26 & 27 Vict. c. 41, s. 1, no innkeeper shall be liable to make good to any guest, any loss or injury to property, brought to the inn (not being a horse, or other live animal, or any gear appertaining thereto, or any carriage), to a greater amount than 30l., except in the following cases: (1) Where the property shall have been stolen, lost or injured, through the wilful act, default, or neglect of the innkeeper or any servant in his employ; (2) Where the property shall have been deposited expressly for safe custody with the innkeeper. Provided that, in case of such deposit, the innkeeper may require as a condition to his liability, that the property be deposited in a box or other receptacle, fastened and sealed by the person depositing the same. By sect. 2, if an innkeeper shall refuse to receive for safe custody any property of his guest, or if the guest shall, through any default of the innkeeper, be unable to deposit his property, the innkeeper shall not be entitled to the benefit of the act in respect of such property. By sect. 3, every innkeeper is to cause, at least one copy of sect. 1 of the act, printed in plain type, to be exhibited in a conspicuous part of the hall or entrance of his inn, and is to be entitled to the benefit of the act in respect of such property only, as shall be brought to his inn while such copy is so exhibited. By sect. 4, "inn" means any hotel, inn, tavern, publichouse, or other place of refreshment, the keeper of which is by law responsible for the property of his guest; "innkeeper" means the keeper of any such place.

It has been held that "wilful" in sect. 1, supra, must be read with “act only, and not also with "fault or neglect." Squire v. Wheeler, 16 L. T., N. S. 93, Byles, J. A material error in the copy exhibited under sect. 3, will exclude the innkeeper from the protection of the statute, e.g., where the copy omits the word "act," in sect. 1 (1). Spice v. Bacon, 2 Ex. D. 463, C. A.

An innkeeper by the common law is bound to receive travellers who present themselves as guests, if he has accommodation. R. v. Irens, 7 C.

& P. 213; Lane v. Cotton, 12 Mod. 484, per Holt, C.J.; White's case, 2 Dyer, 158. See Fell v. Knight, 8 M. & W. 276. He is, however, at liberty to set up an inn for the reception of particular classes of people, and is then only bound to do, what he publicly professes to do in this respect. See per Parke, B. in Johnson v. Midland Ry. Co., 4 Exch. 371, 373. An innkeeper is not bound to receive persons who are not travellers. R. v. Luellin, 12 Mod. 445; R. v. Rymer, 2 Q. B. D. 136. Keepers of coffee-houses and taverns (not professing to lodge their guests), are not common innkeepers; S. C.; nor are the keepers of lodging or boarding houses, for these do not profess to entertain and lodge all travellers; see cases cited, 2 Kent, Com. 595-6; Thompson v. Lacy, 3 B. & A. 283. If, however, they did so profess, they would be in the same position as a common innkeeper. S. C. As to the right of an innkeeper to refuse a guest because he is accompanied by dogs, see R. v. Rymer, supra.

and

The lien of innkeepers is treated of hereafter under Action for conversion of goods.

DEFENCES IN ACTIONS ON SIMPLE CONTRACTS.

In no part of the system of pleading have the J. Acts, and the rules promulgated under them, produced a greater revolution than with reference to the manner in which defences are to be raised.

All pleas and defences in abatement are abolished; Rules, 1883, 0. xxi. r. 20; and all such defences as could formerly have been set up, in actions of contract, by reason of the non-joinder or misjoinder of parties have also been swept away by Rules, 1883, 0. xvi., rr. 1, 4, 11, and any objection arising from any non-joinder, will be remedied by the extensive powers of amendment, given for this purpose by r. 11, vide ante, p. 86. The principal rules which govern the present system of pleading are contained in 0. xix., and will be found ante, pp. 282, et seq.

The following rules also relate specially to defences :

Order xxi. r. 1. "In actions for a debt or liquidated demand in money comprised in O. iii. r. 6, a mere denial of the debt shall be inadmissible." These liquidated demands, see O. iii. r. 6, arise “(A.) upon a contract, express or implied (as, for instance, on a bill of exchange, promissory note, or cheque, or other simple contract debt); or (B.), on a bond or contract under seal for payment of a liquidated amount of money; or (C.), on a statute, where the sum sought to be recovered is a fixed sum of money, or, in the nature of a debt, other than a penalty; or (D.), on a guaranty, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand only; or (E.), on a trust.”

It will be seen that O. xxi. r. 1, is to same effect as R. Pl. T. T. 1853, r. 11; which was annulled by Rules, 1883, preamble, and App. O.

R. 2. "In actions upon bills of exchange, promissory notes, or cheques, a defence in denial must deny some matter of fact; e.g., the drawing, making, endorsing, accepting, presenting, or notice of dishonour of the bill

or note."

This rule is to the same effect as R. Pl. T. T. 1853, r. 7, vide supra.

R. 3. "In actions comprised in O. iii. r. 6, classes (Á.) and (B.)” (vide supra)," a defence in denial must deny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed; e.g., in actions for goods bargained and sold, or sold and delivered, the defence must deny the order or contract, the delivery, or the amount claimed; in an action for money had and received, it must deny the receipt of the money, or the existence of those facts, which are alleged to make such receipts by the defendant a receipt to the use of the plaintiff."

This rule is to the same effect as R. Pl. T. T. 1853, r. 6, vide supra.

R. 4. "No denial or defence shall be necessary as to damages claimed or their amount; but they shall be deemed to be put in issue in all cases, unless expressly admitted."

R. 5.

If either party wishes to deny the right of any other party to claim as executor, or as trustee, whether in bankruptcy or otherwise, or in any representative or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifically." This rule is founded on R. Pl. T. T. 1853, r. 5.

The rules relating to Set-off and Counterclaim will be found post, pp. 625, 626

Accord and Satisfaction.

587

The Rules, 1883, require a defence, that the contract contained a material provision or condition, not mentioned in the statement of claim, or was in the nature of an escrow, e.g., dependent on the approval of a third person before it operated, should be specially pleaded.

A defence denying the contract raises any objection that can be taken under the Stamp Acts. Vide ante, p. 209. But O. xix., rr. 15, 20 (ante, p. 283) require the defence of the Stat. of Frauds to be pleaded specially. Clarke v. Callow, 46 L. J., Q. B. 53, C. A.

Where allegations in the statement of claim have been traversed in the statement of defence in a more general manner than is allowed by O. xix., rr. 17, 19, ante, p. 283, the judges in the Chancery Division have, in many instances, treated the case as though there were no defence pleaded, and refused the defendants leave to amend. Thorp v. Holdsworth, 3 Ch. D. 637; Byrd v. Nunn, 5 Ch. D. 781; 7 Ch. D. 284, C. A.; Tildesley v. Harper, Id. 403; Harris v. Gamble, Id. 877. See also Crowe v. Barnicot, 6 Ch. D. 753. It must, however, be observed that the practice which the above cases threatened to introduce would, in fact, amount to a return to the worst abuses of the system of special pleading, which was abolished by the C. L. P. Act, 1852. The refusal of Fry, J., in Tildesley v. Harper, supra, to allow an amendment, was, however, reversed with costs by the C. A., 10 Ch. D. 393, vide ante, p. 272.

If the defence is that the contract was with A., and not with the plaintiff, the fact of payment by the defendant to A. is not impertinent, as evidence, to the issue; for it shows that the defence is a bona fide one, and not a pretext to avoid payment of the debt. Gerish v. Chartier, 1 C. B. 13.

If the defendant is entitled to a verdict on the ground that no contract exists, he must have a verdict against him on inconsistent defences which assume the existence of one; as payment; accord and satisfaction, &c. Gregson v. Ruck, 4 Q. B. 737.

The following defences to actions on simple contract are arranged in alphabetical order.

Accord and Satisfaction.

Accord and satisfaction after breach must be specially pleaded, and the evidence required in support of it depends on the allegations in the defence, and the reply to it.

In order to be a good discharge of the cause of action, an accord must be executed, that is, performed by the defendant and accepted by the plaintiff, before it can be pleaded; but the plaintiff may accept a valid executory agreement in satisfaction; Evans v. Powis, 1 Exch. 601; Hall v. Flockton, 14 Q. B. 380; 16 Q. B. 1039; 20 L. J., Q. B. 208, Ex. Ch. ; and it will be a question for the jury whether the agreement, and not the performance of it, was accepted in lieu and satisfaction. S. C. The defendant pleaded the pendency of certain disputes, and an agreement respecting them between the plaintiff and defendant, entered into in satisfaction, &c.; the plaintiff denied the agreement: held, that the pendency of the disputes was admitted on the record. Hey v. Moorhouse, 6 N. C. 52. Accord and satisfaction made by a stranger on behalf of the defendant, and adopted by the plaintiff, will be a defence. Jones v. Broadhurst, 9 C. B. 193; Randall v. Moon, 12 C. B. 261; 21 L. J., C. P. 226.

If one of several joint creditors accept a satisfaction from the debtor, this is a good defence to the action, without proof of any authority from the cocreditors to accept the satisfaction. Wallace v. Kelsall, 7 M. & W. 264; Smith v. Lovell, 10 C. B. 6; 20 L. J., C. P. 37. So, if satisfaction be