LIEN-INNKEEPER-CONVERSION.

MULLINER V. FLORENCE.

English Court of Appeal, January 26, 1878.

1. AN INN-KEEPER HAS A LIEN upon his guest's horses and carriages, as well as upon his guest's personal luggage, for the whole of his bill for the guest's entertainment, and not merely for the keep and care of the horses and carriages.

2. IF AN INNKEEPER SELLS GOODS upon which he has a lien, the lien is broken, and he is guilty of a conversion, for which the owner of the goods can maintain an action against him, and recover the whole of the proceeds of the sale as damages.

This was an appeal of the plaintiff from the judgment of Pollock, B., at the trial of the cause before a special jury at Warwickshire Summer Assizes, 1877.

The plaintiff was a coach-builder at Leamington, and the defendant was an hotel-keeper at Coventry. In October, November and December, 1876, a person named Bennett was staying at defendant's hotel, and while there bought of the plaintiff a pair of horses and a wagonette and harness, and had them sent to the defendant's hotel. In January, 1877, Bennett absconded from the defendant's hotel without paying his bill; he was afterwards arrested, tried at Warwick Assizes, and sentenced to seven years' penal servitude.

The plaintiff, not having been paid for the horses and carriage and harness, applied to the defendant to return them to him, when the defendant claimed to retain them until his bill against Bennett was paid. The plaintiff offered to pay the expenses of the horses' keep, but refused to satisfy any other part of Bennett's account. On the 6th of February, the plaintiff obtained an assignment from Bennett of the horses and carriage and harness, in consideration of being released from the price for them. The plaintiff's solicitors then served formal notice of the assignment on the defendant, and demanded the return of the goods, tendering £20 for the keep of the horses. The defendant still refused to deliver up the goods, and on the 9th of February caused the horses to be sold by public auction, when they fetched the sum of £73.

Sir J. F. Stephen, Q. C., and Dugdale, for the plaintiff. First, the defendant's lien was particular, not general. There is no case exactly in point, but the earlier cases favor the notion that the lien was particular. As a general principle of law, a lien is always particular, unless it be made general by some exceptional incident, such as custom. Where the nature of the thing kept is such that it causes some definite and distinct expense and responsibility to the innkeeper, there the lien is particular. Moss v. Townshend, 1 Bulstr. 207; Rosse v. Bramsteed, 2 Rolle, 438; Jones v. Pearle, 1 Strange, 556; Robinson v. Walter, 3 Bulstr. 269; Stirt v. Drungold, 3 Bulstr. 289. [BRETT, L. J.-The innkeeper certainly can not keep them in respect to former accounts.] Threfall v. Borwick, 23 W. R. 312, L. R. 10 Q. B. 210; Broadwood v. Granara, 3 W. R. 25, 10 Ex. 416; Turrill v. Crawley, 13 Q. B. 197. Secondly, the

sale of the horses by the defendant was wrongful: Jones v. Pearle, notes to Coggs v. Bernard, 1 Smith L. C., vol. 1, 7 ed; Thames Ironworks and Shipbuilding Company v. Patent Derrick Company, 8 W. R. 408; Donald v. Suckling, 15 W. R. 13 L. R. 1 Q. B. 585; Story on Equity Jurisprudence, 12th ed., secs. 1216, et seq.; Legg v. Evans, 6 M. & W. 36; Clark v. Gilbart, 2 Bing. N. C. 343: Jacobs v. Latour, 5 Bing. 30; Jones v. Thurloe, 8 Mod. 172; Hartley v. Hitchcock, 1 Stark. 408.

Mellor, Q. C., and Graham, for the defendant.The cases do not decide the question one way or another. In Turrill v. Crawley, the court would not decide it, but Mr. Justice Coleridge pointed out that the innkeeper's lien has been extended. It can not matter that the carriages and horses are kept in another part of the inn. The landlord looks as much to them as guarantee for the payment of his bill as he does to the guest's personal luggage. There is only one contract. If two men furnish evidence that they are joint guests, their goods are jointly liable. Secondly, as to the sale, if we can not sell, our lien is worthless. The owner of a lien may sell at a reasonable time. Even supposing we were wrong in selling, the measure of damages is only nominal. The plaintiff should have tendered the amount due to us. Lien in this respect ought to stand on the same footing as pledge. Donald v. Suckling; Halliday v. Holgate, 17 W. R. 13 L, R. 3 Ex. 299; Johnson v. Stear, 12 W. R. 347, 15 C. B. N. S. 330; Jones v. Tarleton, 9 M. & W. 675. [BRAMWELL. L. J., referred to Chinery v. Viall, 8 W. R. 629, 5 H. & N. 288.] That case shows that if the value of the lien here had been less than the amount of the bill delivered, the plaintiff would have been entitled to recover the difference. The value of the goods is not always the measure of damages in trover. [BRETT, L, J. There the bill of sale had passed the property to the defendant; the plaintiff had only a right of possession. BRAMWELL, L. J. And it was clearly an action of trespass only.] As to the point of this being a pledge of the goods having been abandoned, even if it was, the court can entertain it now: ord. 40, r. 5. If this can be considered a pledge, no action will lie. Halliday v. Holgate,

BRAMWELL, L. J:

There are a good many questions that arise in this case. The first is, was the innkeeper's lien a lien on the horses for the charges in respect of the horses; on the carriage for those in respect of the carriage, and on the guest's clothes and other personal luggage for the guest's own personal expenses? or was it a lien upon all the three classes of goods with respect to the conjoint expenses of horses, carriage and guest? I am of opinion that it was the latter, for this reason: It seems to me that the debt in respect of which the lien is claimed was one, though made up of several items. An innkeeper is not bound to trust his guest. He may demand a reasonable compensation before he is liable to entertain any traveler; but if he does trust him, takes his luggage and horses and carriage in, and finds him in the things which he

wants for himself and his horses and carriage, it is one contract, and the lien is a lien for the due performance of the contract to pay. If that is not the case, almost ludicrous consequences might follow. A man might go to an hotel with his wife and daughter and friend, and then it might be said there was a lien upon the guest's luggage for what he had consumed, upon the wife's for what she had, and so on That can not be. The guest, and horses, and carriage are received and provided for as one transaction, so that no item is severable in any way from the others. It does not seem to me that the sum to be paid is got at by putting down so much for a certain person or thing, so much for guest, horse, carriage. The presumption of law, it is true, is against the general lienthat is to say, if you send goods to a dyer, to whom you owe money for a previous dyeing, he does not acquire a lien upon them, both in respect of this last transaction, and the debt incurred before these goods were sent. One can see the reason; a lien is a matter of contract. But in order to justify the argument raised in this case, some authority ought to be shown that, if there are fifty pieces to be to be dyed for fifty shillings, there is a lien upon each separate piece for each separate shilling, which can not be, because there is only

one contract.

But upon the other part of the case I can not agree with the conclusion that Mr. Baron Pollock came to. Upon the authorities the defendant had a lien which he was able to justify. But he was not justified in selling; he was guilty of a conversion in doing so, and thus has enabled the plaintiff to sue him and to maintain this action for that wrongful conversion. Every notion of the len seems to suppose that, if you part with the possession of the thing, your lien is gone, and if you affect to dispose of the goods for your own benefit, you are guilty of a tortious act. A man need not keep the goods upon his premises, but he must not dispose of them, nor attempt to give a right to them to somebody else; because, a lien being a right to the possession of goods till something is done, every parting with them gives up the lien, and if committed with the intent of giving the property to somebody else, is tortious. The defendant had no right to use the horses, neither to ride nor to drive them; yet it is suggested that he could give a right to somebody else to do so. It is common knowledge that a lien is a thing a man can only avail himself of by keeping it as such. None of the cases are inconsistent with our view. The cases mainly cited were Donald v. Suckling and Johnson v. Stear. In Johnson v. Stear it was held that a sale by a pledgee was tortious, and that an action would lie. But, looking at the substance in that case, and in Halliday v. Holgate, in all these three cases the courts held, or managed to hold, that the pledgee had indeed exceeded what he had a right to do; but that, inasmuch as he, the pledgee, could have transferred his interest-that interest that he had by the pledge-to another person, it was different from the lien, as the act of handing over the pledge was not tortious, but could have been justified under the pledgee's title (except in

Johnson v. Stear), because the pledgee had a right to hand it over; and, that being so, inasmuch as all that was done by handing over and dealing with the goods might have been done properly, if done in a different way, it does not vest the thing in the pledgor, so as to give him a right to maintain an action for it. In the other cases, it was held that there was no right for the owner to receive back the articles without tender of the amount for which they were pledged. In that case there was an interest in the pledgee which could be assigned. A lien can not, and it is clear this was a tortious act.

Now, we come to the damages. As a general rule, when a man tortiously converts property to his own use, as he does by selling it and receiving the price, he is liable for the value of the article to the person whose property it was. The first case urged to the contrary is Chinery v. Viall, where I delivered the judgment of the court. As to that case, it is distinguishable from this on the ground that there were special circumstances. If a vendor tortiously sells the same goods to a second vendee, inasmuch as, according to the authorities, he could maintain no action against his first vendee, it followed, in that case, that the same act of the defendant that was tortious relieved the plaintiff from paying the price. Therefore, the plaintiff gained certainly as much as he lost. I am not going to cast any doubt upon it. Brierley v. Kendal, 17 Q. B. 937, was an action for trespass to goods, in which Mr. Justice Wightman, in the course of the argument, says that, if a man had a right of possession for a month only, he might maintain an action for a trespass or conversion; but is he to recover the full value? It would be very odd if he could; because the reversionary owner might too. Then Johnson v. Stear was relied on, upon which I wish to say a word or two only. The court there held that the action was maintainable for conversion. I see Lord Blackburn in his judgment in Donald v. Suckling seems to doubt whether that is quite right, because what he says is: "This can be reconciled with the cases above cited, of which Fenn v. Bittleston, 7 Ex. 152, is one, by the distinction that the sale, though wrongful, was not so inconsistent with the object of the contract of pledging as to amount to a repudiation of it, though I own that I do not find this distinction in Johnson v. Stear. It may be that the conclusion from these premises ought to have been that the defendant was entitled to the verdict on the plea of not possessed in trover, unless the court thought fit to let the plaintiff on proper terms amend by substituting a count for the improper sale; but this point as to the pleading does not seem to have been presented to the Court of Common Pleas." So that Lord Blackburn makes a doubt whether the judgment was right there in giving a verdict even for nominal damages. But supposing it was, the plaintiff had no right to substantial damages. One may say with great respect that the Court of Common Pleas has come to a right conclusion upon wrong premises. But I am not going to adopt Lord Blackburn's dictum against the judgment of the

Common Pleas. The Common Pleas expressly give the reason that there was a sort of right in the defendant. If so, it did not justify him in parting with the goods at the time he did. Nevertheless it must be taken into account in assessing the damages. For that reason the case is not at all applicable to the present one. Mr. Justice Williams' remark is very strong and apt: "The true doctrine, as it seems to me, is that, whenever the plaintiff could have resumed the property, if he could lay his hands on it, and could have rightfully held it when recovered as the full and absolute owner, he is entitled to recover the value of it as damages in the action of trover, which stands in the place of such resumption. In the present case, I think it plain that, the bailment having been determined by the wrongful sale, the plaintiff might have resumed possession of the goods freed from the bailment, and might have held them rightfully, when so resumed, as the absolute owner against all the world." Now here, in this case, if this plaintiff had thought fit after the sale to go to the vendee and say, "Those are my horses, and though you have bought and paid for them, you have bought them of a man who had no right to sell them," it is clear he could have maintained an action against that vendee and for their full value. He has thought fit not to do so, but to treat the act of the defendant as a conversion; and he can not be worse off because he brings this action, than if he had brought one against the defendant as vendee. The law is not so unreasonable, if the defendant was not bound to feed them. He might have said to the plaintiff, "Pay the debt and you will get them back." It is quite certain that, in the case of distress before the power of sale was given, if a man had sold the distress, he would have been liable for the full value of it. It seems to me, with great respect to Mr. Baron Pollock, that this part of his judgment was wrong; and, as the minimum damages are £73, I think we ought to reverse the judgment and give the plaintiff £73. But inasmuch as the lien was upon the carriage for the whole bill, and the amount was not tendered, so far the defendants are entitled to retain the judgment they have got.

As to the pledge, that point is given up. But in addition I am of opinion that there was no evidence to go to the jury of a pledge; and if the judge had left it to the jury, he would have been wrong. Nothing of any value was given up therefor.

Judgment will be reversed as to the value of the horses, and as to the carriage affirmed.

BRETT and COTTON, L. J. J., delivered separate concurring judgments.

A WITNESS of the lowest class and type entered the witness box of an English court room, and was duly sworn. His testimony was very important in the case. To the first question he replied that he would not answer anything till his expenses were paid. He denied everything, and could remember nothing. "Proceed with your examination," said the judge, addressing the counsel; "if he refuses to answer, he shall be committed for contempt; if he willfully misleads, he shall be indicted for perjury." There was no further trouble with the witness.

1. FIRES CAUSED BY LOCOMOTIVES-ABSOLUTE LIABILITY OF COMPANY.-Under section 1289 of the Iowa Code, a railroad company is absolutely liable for all damages by fire set out or caused by operating its road, without regard to the question of negligence.

2. PROXIMATE AND REMOTE CAUSE.-In an action to recover for the loss of an elevator which was burned by fire caused by the locomotive of the defendant communicating sparks to another elevator near its track, from whence the fire spread to the plaintiff's building: Held, that the fire from the defendant's locomotive was the proximate cause of the loss, and that it was liable for the damage.

3. THE STATUTE UNDER WHICH THE ACTION in this case was brought is constitutional, and is not void for want of constitutional enactment by the General Assembly, under art. 3, p. 2, § 1 of the state constitution.

4. JUROR-CHALLENGE.-A juror was challenged for cause, and the 'objection overruled by the court. He was then challenged peremptorily, and the jury accepted without the defendant having exhausted his peremptory challenges. Held, no ground for reversal.

APPEAL from Poweshiek Circuit Court:

Action at law to recover the value of an elevator and certain personal property therein burned by a fire, set out, as it is alleged, by an engine operated upon the defendant's railroad. The fire was not communicated to the elevator in question from defendant's engine, but by another burning elevator seventy feet distant, and within twenty feet of the railroad track, which was set on fire by sparks communicated by the engine. There was a verdict and judgment for plaintiff. Defendant appeals.

Wright, Gatch & Wright, for appellant; Fairall, Bonordon & Ranck, for appellee.

BECK, J., delivered the opinion of the court:

The several questions arising upon this appeal will be considered in the order of their discussion presented in the brief of defendant's counsel:

A challenge to a juror made by defendant on the ground of an opinion upon the merits of the case, formed and entertained, was overruled. Subsequently, the defendant challenged the juror peremptorily and accepted the jury without having exhausted its peremptory challenges. The overruling of defendant's challenge is the ground of the first alleged error brought to our attention. It may be conceded that the juror upon his voir dire disclosed the existence of an opinion entertained by him, disqualifying him to sit in the case. But by reason of the subsequent exclusion of the juror upon the peremptory challenge of defendant,

no prejudice resulted in the trial of the cause. As defendant did not exhaust its peremptory challenges, it was not prejudiced by being required to direct a challenge of that character to the juror. The jury must be regarded as having been selected by defendant, without objecting to any one finally sworn upon the panel. The law can secure to him nothing more. State v. Elliott, 45 Iowa.

The action is brought under Code § 1289, which is in these words: "Any corporation operating a railway, that fails to fence the same against live stock running at large, at all points where such right to fence exists, shall be liable to the owner of any such stock injured or killed by reason of the want of such fence, for the value of the property or the damage caused, unless the same was caused by the willful act of the owner or his agent. And, in order to recover, it shall only be necessary for the owner to prove the injury or destruction of the property; and if such corporation neglects to pay the value of, or damage done to any such stock within thirty days after notice in writing, accompanied by an affidavit of such injury or destruction, has been served upon the officer, station or ticket agent employed in the management of the business of the corporation in the county where the injury complained of was committed, such owner shall be entitled to recover double the value of the stock killed or damages caused thereto: Provided

the operating

of trains, upon depot grounds necessarily used by the company and public, where no such fence is built, at a greater rate of speed than eight miles per hour, shall be deemed negligence and render the company liable under this section. And provided further, that any corporation operating a railway shall be liable for all damages by fire that is set out or caused by operating any such railway, and such damage may be recovered by the party damaged, in the same manner as set forth in this section in regard to stock, except double damages."

The court gave to the jury an instruction in the following language:

"2nd. It is provided by statute, in this state, that any corporation operating a railway shall be liable for all damages by fire that is set out or caused by operating of any such railway. And the question arises in this case whether the defendant is liable unless it be shown that the fire was caused by the negligence of the defendant or its employees, or whether the liablity is an absolute one, regardless of the question of negligence. It is my opinion, and I instruct you that under this statute, if it be shown by the evidence that the fire was caused by the defendant in operating its railway, it is absolutely liable for the damages caused thereby, whether the defendant was or was not guilty of negligence." An instruction to the effect that plaintiff is not entitled to recover unless it be shown that the fire was set out through defendant's negligence was asked by defendant and refused. The giving of the one and the refusal of the other instruction is now complained of by defendant.

Counsel for defendant insist that, in a case of

this character, no recovery can be had except upon proof of negligence on the part of defendant. They base this position upon the argument that, under the section quoted, a railroad company is liable for the destruction of stock because of its negligence in failing to fence its track; that the absence of a fence, per se, constitutes negligence, and, therefore, in the case of fire there can be no recovery against the corporation unless some act of negligence is proved, or may be inferred. Negligence, they insist, under the first proviso of the act, is the ground of recovery. They conclude, therefore, that, as the cases contemplated in the parts of the section relating to the destruction of live stock, depend upon negligence, those contemplated in the last proviso must be based upon the same ingredient, for damages in the last named cases are recoverable by the very language of the section, in the same manner as in the first.

There are two answers to this argument, the first, admitting its premise to be true, namely, that the existence of negligence is a necessary ingredient of a cause of action for the recovery for stock injured upon the road of the corporation. The argument assumes that negligence for killing stock at points where the corporation has a right to fence, other than depot grounds, consists in the failure to fence. The absence of a fence permits cattle to go upon the road; the negligence is in such permission. It will be observed that the negligence consists in permitting that which the railroad company could not prevent. The negligence at the depot ground, in the same manner, consists in permitting the rate of speed which the company could prevent. The same character of negligence is found in the act of permitting fire to escape. The corporation could prevent it; injury results in its escape. The law, therefore, holds it to be negligence.

But it may be said that the fire might escape through accident. True, but this does not excuse the company any more than the running of the train through oversight, mistake or accident at a greater rate than eight miles an hour would excuse the killing of cattle on the depot grounds, or the failure to build a fence through accident, as the accidental burning of the lumber before the fence was erected, or the like, would excuse the want of a fence. The negligence in each of the three classes of cases contemplated by the statute consists of acts of permission; the permission of stock to run on the track, whereby it is destroyed; the permission of a prohibited speed, whereby animals are injured; the permission of fire to escape, whereby property is consumed. The acts are of the same character. But it may be said as fire must be used in running an engine, the railroad company can not dispense with it, and whenever used it is liable to escape through accident, and can not be certainly controlled. But this conclusion we can not admit. We are of the opinion that contrivances may be applied to engines that would prove just as effectual in preventing the escape of fire as a fence is in preventing cattle going upon a railroad track. Whether such contrivances are in use we know not, and it

is not important to enquire; that they may be applied can not be doubted when we contemplate the resources which science brings to the aid of machinists. At all events the law, in holding railroad companies liable for damage resulting from fires set out by their engines, presumes they may prevent injuries resulting in that way.

But the more satisfactory answer to the argument under consideration is by the denial of the premise upon which it is based, viz: the right of action for stock injured depends upon the negligence of the railroad corporations. The law does not require fences to be built, and does not prohibit a rate of speed greater than eight miles an hour upon depot grounds. It simply creates a liability for cattle injured where no fences are erected and the speed is beyond that named. There is no violation of law in failure to erect fences, or in running at a greater speed than is named; the rights of no one are involved thereby, and the companies exercise an undoubted right in refusing to fence, or in running their trains at a speed exceeding eight miles an hour. Surely, when an act is done which the law does not forbid, which is in conflict with the rights of no one, and is done in the exercise of a right, it can not be said to be negligence. This court has held that the liability of a railroad corporation for stock killed,at a place where the right to fence existed, and the road was not fenced, exists without regard to the question of negligence. Spence v. C. & N. W. R. Co. 25 Iowa 139; Stewart v. B. & M. R. R. Co.. 32 Id. 561.

Let us notice carefully the language of the statute, and consider the liability created and the remedy provided: 1. As to the liability: A railroad corporation is liable for stock killed at points upon its road where the right to fence exists and no fence is erected. The liability exists in specified cases; these are where no fence has been built, and the right to fence exists. The law applies to no other. 2. As to the remedy: In order to recover it shall only be necessary for the owner to prove the injury or destruction of his property. Negligence need not be shown.

In the cases contemplated by the statute as above specified, and in no other, the remedy is applied. Now it is very plain that the conditions of fences, and the right to fence, have no reference to care or negligence; they are introduced solely as conditions upon which the cases rest. Where these conditions are filled, liability of the railroad company attaches.

The last clause of the section cited imposes liability upon railroad companies for damages resulting from fire caused by the operating of their roads. There is no condition accompanying the act of setting out fire necessary in order to create liability. It is absolute, without conditions, and depends upon no fact or circumstances other than the fire. No idea of negligence enters into the clause. It is provided that damages may be recovered in the same manner as provided for recovery in the cases of. stock killed. The provision does not relate to the liability, but to the remedy. Whatever pertains to the remedy in the preced

ing part of the section is here referred to, and nothing else. It will, therefore, be readily seen that no idea of negligence enters into the provision creating liability on acccount of fire. No such idea is in the preceding part of the section, and the reference to the context in the clause under consideration of course can convey no thought of negligence.

But even if the conditions of fences and the right to fence, in that part of the section creating liability for stock killed, convey the idea of negligence (which we have demonstrated not to be so), the thought of negligence can not be found in the last clause creating liability for fire, for the plain reason that there are no conditions whatever upon which such liability is made to depend. It is absolute, without conditions. The language referring to the manner of recovery, as we have seen, expresses no condition attached to the liability, but relates to the remedy.

Counsel for defendant cite De France v. Spencer. 2 G. Greene, 462, which holds that a statute making a party liable in a civil action for injuries sustained from fire set out by him and permitted to escape, can not be enforced against him, unless he willingly or carelessly permitted the escape of the fire. It is insisted that the doctrine of this decision is applicable to the case before us. The statute differs from the one before us in the particular, that it is penal, subjecting the party to a fine upon information, and upon conviction in the criminal proceeding his liability to the party injured accrued. As he could not be convicted unless the act was knowingly and intentionally committed, his civil liability would arise only upon the same conditions. Upon this view the opinion, so far as it holds that the act must be willingly or carelessly done, may be supported. But a similar statute was by this court held to impose liability without regard to negligence, under a legislative intention discovered by comparing the statute with another in pari materia. Com. v. May, 36 Iowa, 241. We need not inquire whether these cases are in conflict. We think that as they construe penal statutes, they are not applicable to the case before us, which involves the construction of a statute intended to secure a civil right and its enforcement by action.

It is insisted that a fire might be set out from an engine of a railroad company by inevitable accident or the act of God. In such a case, it is claimed, a corporation would not be liable. It is neither necessary nor proper to enter into inquiries suggested by this position. No such a question is presented in the record, either by the pleading or evidence before us. It is not claimed, even in argument, that the fire was set out by inevitable accident. No such question was raised by request for instructions, and had an instruction been requested presenting this view of the law, it would have been properly refused as being inapplicable to the testimony. The instruction given by the court as above quoted is not erroneous, even should it be held that inevitable accident would relieve the defendant of liability, for no